(PC) McCoy v. Alison ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSEPH RAYMOND MCCOY, No. 1:22-cv-00234 JLT EPG (PC) 12 Plaintiff, AMENDED ORDER ADOPTING IN FULL THE FINDINGS AND 13 v. RECOMMENDATIONS AND DIRECTING PLAINTIFF TO PAY THE $402.00 FILING 14 KATHILEEN ALISON, et al., FEE IN FULL 15 Defendants. (Doc. 6) 16 17 The assigned magistrate judge issued Findings and Recommendations, recommending 18 that Plaintiff not be allowed to proceed in forma pauperis. (Doc. 6.) The magistrate judge found 19 Plaintiff is subject to the three strikes bar under 28 U.S.C. § 1915(g). (Id. at 2-3.) The 20 magistrate judge also found the allegations in Plaintiff’s complaint do not satisfy the “imminent 21 danger of serious physical injury” exception to Section 1915(g). (Id. at 3-4.) Therefore, the 22 magistrate judge recommended Plaintiff be directed to pay the filing fee in full to proceed with 23 this action. (Id. at 4.) 24 The Findings and Recommendations were served on Plaintiff and contained notice that 25 any objections thereto were to be filed within fourteen days from the date of service. (Doc. 6 at 26 5.) In addition, Plaintiff was “advised that failure to file objections within the specified time may 27 result in the waiver of rights on appeal.” (Id., citing Wilkerson v. Wheeler, 772 F.3d 834, 838-39 28 (9th Cir. 2014); Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991).) On March 21, 2021, 1 Plaintiff filed a motion requesting a fourteen-day extension of time to file his objections (Doc. 7), 2 which was granted the extension on March 22, 2022 (Doc. 8). 3 In his objections, Plaintiff does not deny the findings of the magistrate judge related to the 4 number of cases he previously filed that counted as “strikes.” Instead, Plaintiff maintains he 5 satisfies an exception to the three- strikes rule for imminent danger. (Doc. 10 at 2-3.) In support 6 of this assertion, Plaintiff contends he may be transported from general population to the special 7 needs yard, which he believes is cruel and unusual punishment under the Eighth Amendment. 8 (Id.) Importantly, the imminent danger exception requires a showing that the prisoner “is under 9 imminent danger of serious physical injury.” 28 U.S.C. § 1915(g) (emphasis added); see also 10 Ray v. Lara 2022 U.S. App. LEXIS 9615 at *19 (9th Cir. April 11, 2022) (“in order to qualify for 11 the § 1951(g) imminent danger exception, a three-strikes prisoner must allege imminent danger of 12 serious physical injury that is both fairly traceable to unlawful conduct alleged in his complaint 13 and redressable by the court”). As the magistrate judge determined, there is no explanation as to 14 how transportation to the special needs yard presents an imminent danger of physical harm to 15 Plaintiff. Consequently, Plaintiff does not carry the burden to show he qualifies for the exception 16 identified in Section 1915(g). 17 According to 28 U.S.C. § 636(b)(1)(C), this Court conducted a de novo review of this 18 case. Having carefully reviewed the entire matter, the Court concludes the Findings and 19 Recommendations are supported by the record and by proper analysis. Thus, the Court 20 ORDERS: 21 1. The Findings and Recommendations entered on March 1, 2022 (Doc. 6), are 22 ADOPTED in full. 23 2. Pursuant to 28 U.S.C. § 1915(g), Plaintiff is not permitted to proceed in forma 24 pauperis in this action. 25 3. Within 30 days from the date of service of this order, Plaintiff SHALL pay in full 26 the $402.00 filing fee for this action; and 27 /// 28 /// 1 4. Plaintiff’ is advised that failure to pay the required filing fee as ordered will result 2 in the dismissal of this action without prejudice. 3 4 IT IS SO ORDERED. 5 Dated: _ April 13, 2022 Cerin | Tower TED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28