(PC) Brownlee v. Swingle et al, No. 2:2009cv03305 - Document 12 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 2/1/10 RECOMMENDING that this action be dismissed without prejudice. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 20 days.(Dillon, M)
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(PC) Brownlee v. Swingle et al Doc. 12 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TERRENCE BROWNLEE, Plaintiff, 12 13 14 15 vs. T. SWINGLE, et al., Defendants. FINDINGS & RECOMMENDATIONS / 16 17 No. 2:09-cv-3305 JFM By an order filed January 7, 2010, plaintiff was ordered to pay the appropriate 18 filing fees within twenty-one days and was cautioned that failure to do so would result in a 19 recommendation that this action be dismissed. On January 13, 2010, plaintiff filed a second 20 motion to proceed in forma pauperis. 21 On January 22, 2010, plaintiff filed a response in which he contests this court’s 22 finding that he does not meet the “imminent danger” exception of the Prison Litigation Reform 23 Act (“PLRA”), 28 U.S.C. § 1915(g). As discussed further in this court’s January 7, 2010 order, 24 plaintiff alleges he is being denied treatment for his chronic back pain. Plaintiff seeks money 25 damages only. Although plaintiff’s allegations concern a medical condition, plaintiff does not 26 demonstrate that at the time of filing of his complaint, he was “under imminent danger of serious 1 Dockets.Justia.com 1 physical injury,” because he believes he should be transferred to a medical facility despite prison 2 officials determination that he does not qualify for said transfer, he believes he should receive an 3 MRI, and he suffers more pain on the occasions when he must get down during alarms. The fact 4 that plaintiff seeks money damages only as a form of relief belies any representation that he 5 might be under imminent danger. Indeed, the second level response indicates that plaintiff is 6 prescribed Vicodin, ibuprofen and Lyrica for pain control. (Compl., Ex. C.) The Director’s 7 Level Decision states that plaintiff recently had an epidural lumbar injection. (Compl., Ex. D.) 8 Based thereon, the court reaffirms its finding that plaintiff does not meet the “imminent danger” 9 requirement of section 1915(g) of the PLRA. 10 Moreover, the twenty-one day period has now expired and plaintiff has not paid 11 the appropriate filing fee. Accordingly, IT IS HEREBY RECOMMENDED that this action be 12 dismissed without prejudice. 13 These findings and recommendations are submitted to the United States District 14 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty 15 days after being served with these findings and recommendations, plaintiff may file written 16 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 17 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 18 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 19 F.2d 1153 (9th Cir. 1991). 20 DATED: February 1, 2010. 21 22 23 24 25 /014.brow3305.fifp 26 2
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