(PC) McNeal v. Roberts ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 VERNON WAYNE MCNEAL, No. 2:18-cv-2998 KJM AC P 12 Plaintiff, 13 v. ORDER 14 ROBERTS, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 18 under 42 U.S.C. § 1983. ECF No. 1. The matter was referred to a United States Magistrate Judge 19 as provided 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On May 6, 2020, the magistrate judge issued findings and recommendations, which were 21 served on plaintiff and which contained notice to plaintiff that any objections to the findings and 22 recommendations were to be filed within twenty-one days. ECF No. 7. 23 On June 8, 2020, plaintiff filed a motion for an extension of time to file objections to the 24 findings and recommendations. ECF No. 8. On June 11, 2020, plaintiff was granted an 25 additional thirty-day extension of time to do so. ECF No. 9. Plaintiff states he served the 26 objections on July 14, 2020, three days after the extension deadline. Objections at 5, ECF No. 10. 27 The court will still consider plaintiff’s tardy objections. 28 ///// ] In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 2 || court has conducted a de novo review of this case. Having reviewed the file, the court finds the 3 || findings and recommendations to be supported by the record and by the proper analysis. While 4 || denying prompt medical attention following a head injury may be sufficient to show “imminent 5 || danger of serious physical injury,” the petitioner filed his complaint in November 2018 regarding 6 || facts from October 2017. This one-year delay in filing his complaint prevents the court from 7 || finding the petitioner was under imminent danger of serious physical injury. See Fourstar v. 8 || United States, No. 15-01170, 2015 U.S. Dist. LEXIS 101256, at *4 (E.D. Cal. Aug. 3, 2015). 9 Accordingly, IT IS HEREBY ORDERED that: 10 1. The findings and recommendations issued May 6, 2020 (ECF No. 7) are ADOPTED in 11 | full; 12 2. Plaintiff is herein formally declared a three-strikes litigant pursuant to 28 U.S.C. 13 | § 1915(g); 14 3. Plaintiff's motion to proceed in forma pauperis (ECF No. 2) is DENIED; 15 4. Plaintiff is required to pay the filing fee prior to proceeding any further with this 16 | action, and 17 5. Plaintiff shall have thirty days from the date of this order to pay the filing fee in full. 18 | Failure to pay the fee within the time allotted will result in the dismissal of this action. 19 | DATED: July 8, 2021. 20 21 l ti / ¢ q_/ CHIEF NT] ED STATES DISTRICT JUDGE 23 24 25 26 27 28