Hendon v. Kulka

Full title: CARLOS HENDON, Plaintiff, v. WILLIAM E. KULKA, Defendant.

Court: United States District Court, Ninth Circuit, California, E.D. California

Date published: Jun 7, 2013

2:12-cv-01702 MCE DAD P (E.D. Cal. Jun. 7, 2013)

Opinion

CARLOS HENDON, Plaintiff, v. WILLIAM E. KULKA, Defendant. No. 2:12-cv-01702 MCE DAD P United States District Court, E.D. California. June 7, 2013

          FINDINGS AND RECOMMENDATIONS

          DALE A. DROZD, Magistrate Judge.

         Plaintiff is a state prisoner proceeding pro se and has filed a civil rights action pursuant to 42 U.S.C. § 1983 and an application to proceed in forma pauperis. In an order filed on April 9, 2013, the undersigned determined that plaintiff had previously suffered at least three strikes under 28 U.S.C. § 1915(g). However, the undersigned found it to be unclear at that time whether plaintiff potentially fell within the "imminent danger" exception of §1915(g) which would allow plaintiff to proceed with his action. (Doc. No. 6 at 3.) Plaintiff was therefore ordered to "submit a supplemental statement and medical records demonstrating that he was in imminent danger of serious physical injury at the time he filed his original complaint." (Id. at 4.) In response, plaintiff instead filed a request for reconsideration of this court's April 9, 2013 order. (Doc. No. 7.) On May 13, 2013, the assigned District Judge affirmed the undersigned's order and ordered plaintiff to submit the supplemental statement and medical records within fourteen days, warning plaintiff that his failure to do so would result in the dismissal of this action. (Doc. No. 10.) Plaintiff has not filed the required documents or otherwise responded to the May 13, 2013 order. Therefore, the undersigned will recommend that plaintiff's motion to proceed in forma pauperis be denied and that this action be dismissed, unless plaintiff pays the full statutory filing fee within the twenty-one day deadline for filing objections to these findings and recommendations.

         Accordingly, IT IS HEREBY RECOMMENDED that:

         1. Plaintiff's June 26, 2012 application to proceed in forma pauperis (Doc. No. 2) be denied; and

         2. This action be dismissed without prejudice, unless plaintiff pays the full statutory filing fee by the deadline for filing objections to these findings and recommendations.

         These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days after being served with these findings and recommendations, plaintiff may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).