(PC) Thomas v. Pfeiffer, et al., No. 1:2020cv01679 - Document 15 (E.D. Cal. 2021)

Court Description: ORDER ADOPTING 6 Findings and Recommendations; ORDER DENYING 8 Motion to Proceed IFP; within twenty-one (21) days following service of this order, plaintiff shall pay the required $400.00 filing fee in full to proceed with this action; this matter is referred back to the assigned Magistrate Judge for proceedings consistent with this order, signed by District Judge Dale A. Drozd on 2/12/2021.(Martin-Gill, S)
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(PC) Thomas v. Pfeiffer, et al. Doc. 15 Case 1:20-cv-01679-DAD-SAB Document 15 Filed 02/16/21 Page 1 of 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 EDWARD N. THOMAS, 12 13 14 15 16 No. 1:20-cv-01679-DAD-SAB (PC) Plaintiff, v. CHRISTIAN PFEIFFER, et al., ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DENYING PLAINTIFF’S REQUEST TO PROCEED IN FORMA PAUPERIS Defendants. (Doc. No. 6) 17 18 Plaintiff Edward N. Thomas is a state prisoner proceeding pro se in this civil rights action 19 pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge 20 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On December 3, 2020, the assigned magistrate judge issued findings and 22 recommendations, recommending that plaintiff’s application to proceed in forma pauperis be 23 denied and that he be required to pay the $400.00 filing fee in full to proceed with this action 24 because: (1) he is subject to the three strikes bar under 28 U.S.C. § 1915(g); and (2) the 25 allegations of plaintiff’s complaint do not satisfy the “imminent danger of serious physical injury” 26 exception to § 1915(g). (Doc. No. 6 at 2–4.) Specifically, as to the former ground, the magistrate 27 judge finds that the undersigned has already denied in forma pauperis status once to plaintiff 28 under 1915(g) in Thomas v. Pfeiffer, No. 1:19-cv-01489-DAD-EPG (E.D. Cal.). (Doc. No. 6 at 1 Dockets.Justia.com Case 1:20-cv-01679-DAD-SAB Document 15 Filed 02/16/21 Page 2 of 3 1 2.) As to the latter ground, the findings and recommendations conclude that plaintiff’s alleged 2 imminent harm occurred at a different facility and well before the filing of the instant complaint. 3 (Id. at 3.) Therefore, “there are no factual allegations in [plaintiff’s] complaint that raise a 4 reasonable inference that he was facing imminent danger of serious physical injury at the time 5 that he initiated this action.” (Id.) 6 Those findings and recommendations were served on plaintiff and contained notice that 7 any objections thereto were to be filed within fourteen (14) days after service. (Id. at 4.) On 8 December 21, 2020 the magistrate judge granted plaintiff an extension of time to file objections 9 to the findings and recommendations. (Doc. No. 13.) Plaintiff filed objections on January 25, 10 2021. (Doc. No. 14.) Therein, plaintiff appears to argue that he is still in imminent danger “at the 11 hands of these CSP-Sacramento prison staff correctional officers,” though he offers no evidence 12 or facts as to how that is the case. (Doc. No. 14 at 6.) Plaintiff also appears to repeat formerly 13 made arguments that his past dismissals should not count as strikes. (Id.) Plaintiff’s objections 14 fail to show how he has plausibly pled an ongoing danger as opposed to merely alleging past 15 injuries or adverse administrative actions by defendants. See Andrews v. Cervantes, 493 F.3d 16 1047, 1057 n.11 (9th Cir. 2007). Moreover, the court has previously found that plaintiff suffered 17 three prior strike dismissals under § 1915(g). See Thomas v. Parks, No. 116-cv-01393-LJO-JLT, 18 2018 WL 4373021, at *1 (E.D. Cal. Sept. 13, 2018). Plaintiff’s objections, therefore, do not 19 dissuade the court from adopting the pending findings and recommendations. 20 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a 21 de novo review of this case. Having carefully reviewed the entire file, the court finds the findings 22 and recommendations to be supported by the record and by proper analysis. 23 Accordingly: 24 1. 25 adopted in full; 26 2. 27 28 The findings and recommendations issued on December 3, 2020 (Doc. No. 6), are In accordance with 28 U.S.C. § 1915(g), plaintiff’s application to proceed in forma pauperis (Doc. No. 8) is denied; ///// 2 Case 1:20-cv-01679-DAD-SAB Document 15 Filed 02/16/21 Page 3 of 3 1 3. 2 3 required $400.00 filing fee in full to proceed with this action; 4. 4 5 8 9 Plaintiff’s failure to pay the filing fee within the specified time will result in the dismissal of this action; and 5. 6 7 Within twenty-one (21) days following service of this order, plaintiff shall pay the This matter is referred back to the assigned magistrate judge for proceedings consistent with this order. IT IS SO ORDERED. Dated: February 12, 2021 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3