(PC) Kinnamon v. Clausen ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TODD LEE KINNAMON, No. 1:23-cv-00168-ADA-CDB (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND 13 v. RECOMMENDATIONS AND DISMISSING ACTION WITHOUT PREJUDICE FOR 14 C. CLAUSEN, et al., FAILURE TO OBEY A COURT ORDER AND FAILURE TO PROSECUTE 15 Defendants. (ECF No. 11) 16 17 18 Plaintiff Todd Lee Kinnamon is a state prisoner proceeding pro se in this civil rights 19 action filed pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate 20 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On March 27, 2023, this Court entered an order denying Plaintiff’s application to proceed 22 in forma pauperis and requiring Plaintiff to pay the $402.00 filing fee. (ECF No. 8.) After 23 Plaintiff failed to pay the filing fee, on May 2, 2023, the Magistrate Judge issued findings and 24 recommendations, recommending that the Court dismiss this case without prejudice due to 25 Plaintiff’s failure to comply with a court order and failure to prosecute this case. (ECF No. 11.) 26 Plaintiff filed objections on May 22, 2023. (ECF No. 12.) 27 In his objections, Plaintiff states that he is in a wheelchair as a result of an excessive force 28 incident and that he is in imminent danger because he falls if he tries to walk. (Id. at 1.) He 1 | further indicates that he is unable to pay the filing because he does not have a job in prison, and 2 | he has no family who can help him pay the fee. (Ud. at 2.) Notably, Plaintiff does not dispute 3 | that he has three or more strikes within the meaning of 28 U.S.C. § 1915(g). Moreover, his 4 | claim of imminent danger is conclusory and insufficient for him to proceed with in forma 5 || pauperis status. See White v. Colorado, 157 F.3d 1226, 1231-32 (10th Cir. 1998); Martin v. 6 | Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). Because Plaintiff has at least three strikes and has 7 | not established that he faces imminent danger, the Court may not allow him to proceed in this 8 | case unless he pays the filing fee. See 28 U.S.C. § 1915(g). 9 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(©), this Court has conducted 10 | ade novo review of this case. Having carefully reviewed the entire file, the Court concludes that 11 | the findings and recommendations are supported by the record and proper analysis. 12 Accordingly, 13 1. The findings and recommendations issued on May 2, 2023, (ECF No. 11), are 14 adopted in full; 15 2. This action is dismissed without prejudice for failure to obey a court order and 16 failure to prosecute; and 17 3. The Clerk of Court is directed to close this case. 18 19 29 | IT IS SO ORDERED. 21 Dated: _ October 25, 2023 0 UNITED fTATES DISTRICT JUDGE 23 24 25 26 27 28