Opinion
No. 1:20-cv-00422-NONE-SAB (PC)
09-04-2020
D. DUSTIN, Plaintiff, v. CHILDRES, et al., Defendants.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DIRECTING PLAINTIFF TO PAY THE $400.00 FILING FEE IN FULL WITHIN THIRTY DAYS
(Doc. Nos. 2, 11, 14)
Plaintiff D. Dustin is proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. 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 May 11, 2020, the assigned magistrate judge issued findings and recommendations, recommending that plaintiff's in forma pauperis application (Doc. No. 2) be denied. (Doc. No. 11.) The findings and recommendations were served on plaintiff and contained notice that objections were due within fourteen days. (Doc. No. 11.) On May 27, 2020, plaintiff filed a motion entitled notice of imminent danger, which the court construes as objections to the findings and recommendations. (Doc. No. 13.) On June 2, 2020, plaintiff filed a renewed application to proceed in forma pauperis. (Doc. No. 14.) /////
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, the court has conducted a de novo review of this case. Having carefully reviewed the entire file, including plaintiff's objections, the court finds the pending findings and recommendations (Doc. No. 11) to be supported by the record and proper analysis.
The court notes that the findings and recommendations inadvertently stated that this action was filed on June 26, 2019 (Doc. No. 11 at 3). However, the complaint was filed in this case on March 18, 2020. (Doc. No. 1.) This error does not impact the undersigned's analysis of the findings and recommendations.
Plaintiff appears to object to the pending findings and recommendations on the grounds that he is in imminent danger from "numerous enemies." (Doc. No. 13 at 1.) In support of this objection, plaintiff appears to argue that he has been assaulted three times while imprisoned. (See id.) However, plaintiff does not specify when these alleged assaults occurred. (See generally id.) Moreover, plaintiff avers that he has been in "imminent danger of serious physical injury at the time the complaint was filed!!" (Id. at 2.) Petitioner's objection is merely conclusory and not supported by specific and credible allegations demonstrating that he is in imminent danger. See Childs v. Miller, 713 F.3d 1262, 1267 (10th Cir. 2013) (ordering appellee "will be barred from proceeding [in forma pauperis] in future civil actions or appeals in federal court unless he is 'under imminent danger of serious physical injury,' and he makes 'specific [and] credible allegations' to that effect.") (internal citations omitted). Plaintiff thus has failed to show that he was in imminent danger of serious physical injury at the time that his complaint was filed. ///// ///// ///// ///// ///// ///// ///// ///// /////
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations issued on May 11, 2020 (Doc. No. 11) are adopted in full;IT IS SO ORDERED.
2. Plaintiff's in forma pauperis applications (Doc. Nos. 2, 14) are denied;
3. Plaintiff is required to pay the $400 filing fee in full within thirty (30) days of this order; and
4. If plaintiff fails to pay the $400 filing fee in full within thirty (30) days of this order, this action will be dismissed without prejudice and without further notice.
Dated: September 4 , 2020
/s/_________
UNITED STATES DISTRICT JUDGE