(PC) Blackman v. Kelly et al, No. 1:2009cv01564 - Document 6 (E.D. Cal. 2009)

Court Description: ORDER ADOPTING 5 FINDINGS AND RECOMMENDATIONS and DENYING 2 Motion to Proceed IFP, signed by Judge Oliver W. Wanger on 11/24/2009. Plaintiff is directed to submit the $350.00 filing fee in full within thirty days of the date of service of this order. Plaintiffs failure to do so will result in dismissal of this action pursuant to Local Rule 11-110 for failure to prosecute. Filing Fee due by: 12/28/2009. (Sondheim, M)

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(PC) Blackman v. Kelly et al Doc. 6 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT FOR THE 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 TONY BLACKMAN, ) ) Plaintiff, ) ) v. ) ) E. KELLY, et al., ) ) Defendants. ) ____________________________________) 1:09 CV 01564 OWW YNP SMS (PC) ORDER RE: FINDINGS & RECOMMENDATIONS Document # 5 16 17 Plaintiff is a state prisoner proceeding pro se in this civil rights action. The matter was 18 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 19 72-302. 20 Plaintiff, an inmate in the custody of the California Department of Corrections and 21 Rehabilitation at Corcoran State Prison, brings this action pursuant to 42 U.S.C. § 1983 against 22 correctional officials employed by the CDCR at Corcoran State Prison. Plaintiff’s complaint sets 23 forth allegations that defendants have confiscated his written inmate appeals. 24 The Prison Litigation Reform Act provides that “[i]n no event shall a prisoner bring a 25 civil action . . . under this section if the prisoner has, on 3 or more occasions, while incarcerated 26 or detained in a facility, brought an action or appeal in a court of the United States that was 27 dismissed on the ground that it is frivolous, malicious, or fails to state a claim upon which relief 28 may be granted, unless the prisoner is under imminent danger of serious injury.” 28 U.S.C. § Dockets.Justia.com 1 1915(g). 2 This plaintiff has, on 3 prior occasions, brought civil actions challenging the conditions of 3 his confinement. All three action were dismissed as frivolous, or for failure to state a claim upon 4 which relief can be granted. Blackman v. Harwell, et al., 99-5822 REC HGB P (E. Dist. Cal.); 5 Blackman v. Medina, 05-CV-05390-SI (N. Dist. Cal.); Blackman v. Variz , 06-CV 06398 SI (N. 6 Dist. Cal.). 7 facts indicating that he is in imminent danger of serious physical injury. There are no such facts 8 alleged in this case. 9 Plaintiff is therefore not entitled to proceed in forma pauperis unless he alleges Accordingly, Plaintiff was ordered to show cause why his request to proceed in forma 10 pauperis should not be denied. 11 recommendations were entered, recommending that Plaintiff’s application to proceed in forma 12 pauperis be denied and that Plaintiff be directed to submit the $350 filing fee in full. Plaintiff has 13 not filed objections to the findings and recommendations. 14 Plaintiff failed to do so and on October 19, 2009, findings and In accordance with the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 73-305, 15 this court has conducted a de novo review of this case. Having carefully reviewed the entire file, 16 the court finds the findings and recommendations to be supported by the record and proper 17 analysis. 18 Accordingly, THE COURT HEREBY ORDERS that: 19 1. The Findings and Recommendations issued by the Magistrate Judge on October 19, 20 21 22 23 2009, are adopted in full; and 2. Plaintiff’s application to proceed in forma pauperis is denied pursuant o 28 U.S.C. § 1915(g). 3. Plaintiff is directed to submit the $350 filing in full within thirty days of the date of 24 service of this order. Plaintiff’s failure to do so will result in dismissal of this action pursuant to 25 Local Rule 11-110 for failure to prosecute. 26 27 28 2 1 IT IS SO ORDERED. 2 Dated: November 24, 2009 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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