Opinion
2:18-cv-2998 KJM AC P
07-08-2021
VERNON WAYNE MCNEAL, Plaintiff, v. ROBERTS, et al., Defendants.
ORDER
Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. ECF No. 1. The matter was referred to a United States Magistrate Judge as provided 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On May 6, 2020, the magistrate judge issued findings and recommendations, which were served on plaintiff and which contained notice to plaintiff that any objections to the findings and recommendations were to be filed within twenty-one days. ECF No. 7.
On June 8, 2020, plaintiff filed a motion for an extension of time to file objections to the findings and recommendations. ECF No. 8. On June 11, 2020, plaintiff was granted an additional thirty-day extension of time to do so. ECF No. 9. Plaintiff states he served the objections on July 14, 2020, three days after the extension deadline. Objections at 5, ECF No. 10. The court will still consider plaintiff's tardy objections.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this court has conducted a de novo review of this case. Having reviewed the file, the court finds the findings and recommendations to be supported by the record and by the proper analysis. While denying prompt medical attention following a head injury may be sufficient to show “imminent danger of serious physical injury, ” the petitioner filed his complaint in November 2018 regarding facts from October 2017. This one-year delay in filing his complaint prevents the court from finding the petitioner was under imminent danger of serious physical injury. See Fourstar v. United States, No. 15-01170, 2015 U.S. Dist. LEXIS 101256, at *4 (E.D. Cal. Aug. 3, 2015).
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations issued May 6, 2020 (ECF No. 7) are ADOPTED in full;
2. Plaintiff is herein formally declared a three-strikes litigant pursuant to 28 U.S.C. § 1915(g);
3. Plaintiffs motion to proceed in forma pauperis (ECF No. 2) is DENIED;
4. Plaintiff is required to pay the filing fee prior to proceeding any further with this action, and
5. Plaintiff shall have thirty days from the date of this order to pay the filing fee in full. Failure to pay the fee within the time allotted will result in the dismissal of this action.