Driver v. Fresno US Court ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BILLY DRIVER, No. 1:22-cv-00623-DAD-SKO (PC) 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING 14 FRESNO US COURT, et al., PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS, AND REQUIRING 15 Defendants. PLAINTIFF TO PAY THE FILING FEE TO PROCEED WITH THIS ACTION 16 (Doc. No. 13) 17 18 Plaintiff Billy Driver is a state prisoner proceeding pro se in this civil action, which he 19 filed on May 24, 2022. (Doc. No. 1.) Plaintiff also filed an application to proceed in forma 20 pauperis pursuant to 28 U.S.C. § 1915 on May 24, 2022. (Doc. No. 1.) This matter was referred 21 to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 On June 7, 2022, the assigned magistrate judge issued findings and recommendations, 23 recommending that plaintiff’s application to proceed in forma pauperis be denied on the grounds 24 that plaintiff was subject to the three strikes bar under 28 U.S.C. § 1915(g) and that the 25 allegations of his complaint did not satisfy the “imminent danger of serious physical injury” 26 exception to that bar. (Doc. No. 5.) 27 Those findings and recommendations were served on plaintiff and contained notice that 28 any objections thereto were to be filed within twenty-one (21) days after service. (Id. at 3.) On 1 June 27, 2022, plaintiff timely filed objections to the pending findings and recommendations. 2 (Doc. No. 6.) 3 In his objections, plaintiff includes an “Administrative Segregation Unit Placement 4 Notice,” which indicates that he was placed in segregated housing at Kern Valley State Prison on 5 June 16, 2022, due to “self-expressed safety/enemy concerns.” (Doc. No. 6 at 3.) There is no 6 other factual detail or support provided with respect for plaintiff’s “concerns,” and nothing else in 7 the record suggests that plaintiff was facing any imminent danger of physical injury at the time he 8 filed his complaint in this action on May 24, 2022. See Andrews v. Cervantes, 493 F.3d 1047, 9 1050 (9th Cir. 2007). “[V]ague and utterly conclusory assertions” of imminent danger are 10 insufficient to establish one’s entitlement to relief under § 1915(g)’s exception. White v. 11 Colorado, 157 F.3d 1226, 1231–32 (10th Cir. 1998). Plaintiff’s objections therefore provide no 12 basis upon which to reject the pending findings and recommendations. 13 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 14 de novo review of the case. Having carefully reviewed the entire file, including plaintiff’s 15 objections, the court concludes that the findings and recommendations are supported by the 16 record and proper analysis. 17 Accordingly: 18 1. The findings and recommendations issued on June 7, 2022 (Doc. No. 5), are 19 adopted; 20 2. In accordance with 28 U.S.C. § 1915(g), plaintiff’s application to proceed in forma 21 pauperis (Doc. No. 2) is denied; 22 3. Within twenty-one (21) days following service of this order, plaintiff shall pay the 23 $402.00 filing fee in full to proceed with this action; 24 ///// 25 ///// 26 ///// 27 ///// 28 ///// 1 4. Failure to pay the required filing fee in full within the specified time will result in 2 the dismissal of this case; and 3 5. The matter is referred back to the magistrate judge for proceedings. 4 | ITIS SO ORDERED. a " 5 Li. wh F Dated: _ July 12, 2022 we fo = 6 UNITED STATES DISTRICT JUDGE 4 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28