Opinion
2:21-cv-0572 JAM KJN P
12-20-2021
FRANCISCO MERINO, Plaintiff, v. GOMEZ, et al., Defendants.
ORDER
HONORABLE JOHN A. MENDEZ UNITED STATES DISTRICT COURT JUDGE
Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 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 October 27, 2021, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within fourteen days. Plaintiff has filed objections to the findings and recommendations. The undersigned considers plaintiff's objections although they are untimely.
On November 4, 2021, plaintiff filed a second amended complaint raising the Eighth Amendment claims on which this action proceeds. (ECF No. 51.) The second amended complaint does not raise the retaliation claim against defendant Gomez, raised by plaintiff in several pleadings filed in response to the pending motion. (ECF No. 50 at 7.) For this reason, the undersigned finds that the second amended complaint does not demonstrate a nexus between the Eighth Amendment and retaliation claims, required to demonstrate the imminent danger exception to 28 U.S.C. § 1915(g). (Id. at 7-8.)
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 carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed October 27, 2021, are adopted in full;
2. Defendants' motion to revoke plaintiff's in forma pauperis status (ECF No. 31) is granted; and
3. Plaintiff is ordered to pay the $402.00 filing fee within 30 days of the date of this order.