(PC) Driver v. Mueller ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BILLY DRIVER, JR, No. 2:23-cv-01233-DAD-KJN (PC) 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DENYING 14 KIMBERLY J. MUELLER, et al., MOTION TO PROCEED IN FORMA PAUPERIS 15 Defendant. (Doc. Nos. 2, 10) 16 17 Plaintiff Billy Driver, Jr. is a state prisoner proceeding pro se in this civil rights action 18 pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge 19 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On July 28, 2023, the assigned magistrate judge issued findings and recommendations 21 recommending that plaintiff’s application to proceed in forma pauperis (Doc. No. 2) be denied 22 because: (1) he is subject to the three strikes bar under 28 U.S.C. § 1915(g); and (2) the 23 allegations of plaintiff’s complaint do not satisfy the “imminent danger of serious physical injury” 24 exception to § 1915(g). (Doc. No. 10); see Andrews v. Cervantes, 493 F.3d 1047, 1051−55 (9th 25 Cir. 2007). The magistrate judge also recommended that plaintiff be ordered to pay the required 26 $402.00 filing fee in full in order to proceed with this action. (Id. at 6.) The findings and 27 recommendations were served on plaintiff and contained notice that any objections thereto were 28 ///// 1 | to be filed within twenty-one (21) days after service. id.) To date, no objections to those 2 | findings and recommendations have been filed, and the time in which to do so has now passed. 3 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the undersigned has 4 | conducted a de novo review of the case. Having carefully reviewed the entire file, the 5 | undersigned concludes that the findings and recommendations are supported by the record and 6 | proper analysis. 7 Accordingly, 8 1. The findings and recommendations issued on July 28, 2023 (Doc. No. 10) are 9 adopted; 10 2. Plaintiff's motion to proceed in forma pauperis (Doc. No. 2) is denied; 11 3. Within thirty (30) days from the date of service of this order, plaintiff shall pay the 12 $402.00 filing fee in full in order to proceed with this action; 13 4. Plaintiff is forewarned that failure to pay the filing fee within the specified time 14 will result in the dismissal of this action; and 15 5. This matter is referred back to the assigned magistrate judge for further 16 proceedings consistent with this order. 17 IT IS SO ORDERED. | Dated: _ October 18, 2023 Dae A. 2, 19 DALE A. DROZD 30 UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28