(PC) Stephen v. Montejo ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JIMMIE STEPHEN, No. 2:18-cv-1796 KJM DB P 12 Plaintiff, 13 v. ORDER 14 E. MONTEJO, 15 Defendant. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 18 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided 19 by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On February 3, 2020, the magistrate judge filed findings and recommendations, which 21 were served on all parties and which contained notice to all parties that any objections to the 22 findings and recommendations were to be filed within fourteen days. Neither party has filed 23 objections to these findings and recommendations. 24 On June 12, 2020, the magistrate judge filed a separate set of findings and 25 recommendations, which were served on all parties and which contained notice to all parties that 26 any objections to the findings and recommendations were to be filed within thirty days. Plaintiff 27 has filed objections to these recommendations. 28 ///// 1 Regarding the February 3 findings and recommendations, the court presumes any findings 2 of fact are correct. See Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979). The 3 magistrate judge’s conclusions of law are reviewed de novo. See Robbins v. Carey, 481 F.3d 4 1143, 1147 (9th Cir. 2007) (“[D]eterminations of law by the magistrate judge are reviewed de 5 novo by both the district court and [the appellate] court . . . .”). 6 Regarding the June 12 findings and recommendations, in accordance with the provisions 7 of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this court has conducted a de novo review of 8 this case. Having reviewed the file, the court finds the findings and recommendations to be 9 supported by the record and by the proper analysis.1 10 Accordingly, IT IS HEREBY ORDERED that: 11 1. The findings and recommendations filed February 3, 2020, are adopted in full; 12 2. Plaintiff’s request for preliminary injunctive relief (ECF No. 53) is denied; and 13 3. The findings and recommendations filed June 12, 2020 are adopted in full: 14 a. Defendant’s request for judicial notice (ECF No. 78) is granted as to plaintiff’s 15 litigation history and denied in all other respects; 16 b. Defendant’s motion to revoke plaintiff’s in forma pauperis status (ECF No. 77) 17 is granted; and 18 c. Within thirty days of the date of this order, plaintiff shall pay the $400 filing fee 19 if he wishes to proceed with this case. Plaintiff’s failure to do so will result in dismissal of this 20 action. 21 DATED: November 30, 2020. 22 23 24 1 The court modifies the sentence beginning at page 10, line 12, of the February 3, 2020 findings 25 and recommendations, to read as follows: Because this further testing did not occur until 26 December 26, 2019, see Obj. to F&Rs, ECF No. 89, at 29 (medical progress notes documenting plaintiff was seen for a follow up visit where doctor “referred [plaintiff] to radiation oncology for 27 prostate cancer treatment”), after plaintiff filed this action in June 2018, it cannot form the basis for any assertion that plaintiff was in imminent danger of serious physical harm at the time he 28 filed here.