Opinion
Case No. 1:14-cv-01248 LJO DLB PC
01-26-2016
KEVIN TYRONE FLEMINGS, Plaintiff, v. GRAY, et al., Defendants.
ORDER ADOPTING FINDINGS AND RECOMMENDATION AND GRANTING DEFENDANTS' MOTION TO REVOKE PLAINTIFF'S IN FORMA PAUPERIS STATUS ORDER DIRECTING PLAINTIFF TO PAY FILING FEE WITHIN FOURTEEN DAYS
Plaintiff Kevin T. Flemings ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action. Plaintiff filed this action on August 8, 2014. The 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 17, 2015, the Magistrate Judge issued Findings and Recommendations that recommended Defendants' motion to revoke in forma pauperis status be GRANTED and Plaintiff be DIRECTED to pay the filing fee. The Findings and Recommendations were served on all parties and contained notice that any objections were to be filed within thirty (30) days. On January 19, 2016, Plaintiff filed objections. Defendants filed a reply on January 25, 2016.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of this case. Plaintiff contends he was in imminent danger of serious harm because his Nike shoes were confiscated. However, as discussed in the Findings and Recommendations, Plaintiff was not in imminent danger of serious harm at the time he filed suit. This is so because Plaintiff claims his shoes were confiscated by Defendants at Wasco State Prison, but at the time he filed suit he was housed at Correctional Training Facility in Soledad, California. Plaintiff did not claim to be in danger once relocated. Thus, he was not in imminent danger when he filed suit. In addition, there is nothing in the record showing that Plaintiff was prevented in any way from purchasing actual orthopedic shoes instead of the Nike shoes that were deemed to be contraband. Thus, to the extent Plaintiff experienced pain and discomfort from the lack of orthopedic shoes, it was caused by Plaintiff's own actions or omissions.
The Court takes judicial notice of Flemings v. Ryan, Case No. 2:06-cv-04186-GAF-FMO, wherein Plaintiff previously purchased unauthorized Nike shoes that were then seized as contraband. --------
Having carefully reviewed the entire file, including Plaintiff's objections and Defendants' reply, the Court finds that the Findings and Recommendations are supported by the record and by proper analysis.
Accordingly, IT IS HEREBY ORDERED that: 1. The Findings and Recommendations, filed December 17, 2015, are ADOPTED in full; 2. Defendant's motion to revoke Plaintiff's in forma pauperis status is GRANTED; 3. Plaintiff's in forma pauperis status is REVOKED; and 4. Plaintiff is DIRECTED to pay the filing fee within fourteen (14) days of the date of service of this Order. Failure to do so will result in DISMISSAL of the case. IT IS SO ORDERED.
Dated: January 26 , 2016
/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE