Opinion
No. 1:19-cv-01718-DAD-SAB (PC)
06-24-2020
BILLY DRIVER, JR, Plaintiff, v. ADA 1824 PANELS, et al., Defendants.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS
(Doc. Nos. 4, 8)
Plaintiff Billy Driver Jr. is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On December 16, 2019, the assigned magistrate judge issued findings and recommendations, recommending that plaintiff's application to proceed in forma pauperis be denied pursuant to 28 U.S.C. § 1915(g) and that plaintiff be ordered to pay the required $400.00 filing fee in full in order to proceed with this action. (Doc. No. 8.) The findings and recommendations were served on plaintiff and contained notice that any objections thereto were to be filed within thirty (30) days after service. (Id. at 4.) Plaintiff filed written objections to the findings and recommendations on January 14, 2020 and January 21, 2020. (Doc. Nos. 12, 13.)
Plaintiff's February 7, 2020 request for ruling on the pending findings and recommendations (Doc. No. 20) will be denied as having been rendered moot by this order. --------
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a de novo review of the case. Having carefully reviewed the entire file, including plaintiff's objections, the court finds the findings and recommendations to be supported by the record and by proper analysis.
In plaintiff's objections, he states that he is in imminent danger because he endured "continued and ongoing excessive use of force" through 2015 and 2016. (Doc. No. 12 at 2.) Plaintiff also argues that he endured the use of pepper spray, assault, and physical violence from medical staff and guards in early 2019. (Doc. No. 13 at 2.) However, as the magistrate judge correctly noted in the pending findings and recommendations, imminent danger under § 1915(g) must be alleged and assessed at the time plaintiff filed his complaint, which in this case was on December 10, 2019 (Doc. No. 1). The only instance plaintiff references that is temporally close to the time he filed his complaint in this action is when he was allegedly subjected to "rogue violent abusive guards and top prison officials," including correctional officers Torrez and Sevilla "as of December 24, 2019." (Id.) Even this vague allegation, however, did not appear in the complaint. (See generally Doc. No. 1.) "The exception [under § 1915(g)] applies if the complaint makes a plausible allegation that the prisoner faced 'imminent danger of serious physical injury' at the time of filing." Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). Because the complaint filed by plaintiff in this action lacks any such allegation, the imminent danger exception does not apply here.
Accordingly:
1. The findings and recommendations issued on December 16, 2019 (Doc No. 8) are adopted in full;
2. In accordance with 28 U.S.C. § 1915(g), plaintiff's application to proceed in forma pauperis (Doc. No. 4) is denied;
3. Within twenty-one (21) days following the date of service of this order, plaintiff shall pay the $400.00 filing fee in full in order to proceed with this action;
4. Plaintiff is warned that, if he fails to pay the required filing fee within the specified time, this action will be dismissed;
5. Plaintiff's motion for ruling on the findings and recommendations (Doc. No. 20) is denied as being rendered moot by this order; andIT IS SO ORDERED.
6. This matter is referred back to the assigned magistrate judge for further proceedings.
Dated: June 24 , 2020
/s/_________
UNITED STATES DISTRICT JUDGE