(PC) Wilson v. Tucci et al., No. 2:2015cv02404 - Document 20 (E.D. Cal. 2017)

Court Description: ORDER signed by District Judge Kimberly J. Mueller on 3/10/17 ORDERING that the findings and recommendations filed September 7, 2016, are NOT ADOPTED; and this matter is REFERRED back to the assigned magistrate judge for further proceedings consistent with this order.(Becknal, R)
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(PC) Wilson v. Tucci et al. Doc. 20 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 DAVID W. WILSON, 11 12 13 14 No. 2:15-cv-2404-KJM-CMK P Plaintiff, v. ORDER NICOLE M. TUCCI, et al., Defendants. 15 16 Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 42 17 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided by 18 Eastern District of California local rules. 19 On September 7, 2016, the Magistrate Judge filed findings and recommendations, 20 which were served on the parties and which contained notice that the parties may file objections 21 within a specified time. Objections to the findings and recommendations have been filed. 22 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 23 304(f), this court has conducted a de novo review of this case. Having reviewed the file, the court 24 declines to adopt the findings and recommendations and refers the matter back to the assigned 25 magistrate judge for further proceedings consistent with this order. 26 The magistrate judge finds that plaintiff has previously been found to be barred 27 from proceeding in forma pauperis in accordance with the provisions of 28 U.S.C. § 1915(g). 28 ECF No. 15 at 2. The finding is supported by the cases cited in the findings and 1 Dockets.Justia.com 1 recommendations. Id. The magistrate judge also finds that “nothing in the complaint indicates 2 plaintiff is or was under imminent danger of serious physical injury.” Id. While this appears 3 correct with respect to most of the allegations of the complaint, it is not clear that it is correct with 4 respect to the allegations found in the paragraphs identified as number 9 on page 51 and number 5 50 on page 31 of the complaint, ECF No. 1. A prisoner who adequately alleges facts which 6 support application of “the ‘imminent danger’ exception” to the 1915(g) bar must be allowed to 7 proceed in forma pauperis even if “the ‘imminent danger’ exception applies to only one claim.” 8 Andrews v. Cervantes, 493 F.3d 1047, 1054 (9th Cir. 2007). 9 Good cause appearing, this matter will be referred back to the assigned magistrate 10 judge for further consideration in light of Andrews and this order. Accordingly, IT IS HEREBY 11 ORDERED that: 12 1. The findings and recommendations filed September 7, 2016, are not adopted; 13 and 14 2. This matter is referred back to the assigned magistrate judge for further 15 16 proceedings consistent with this order. DATED: March 10, 2017 17 18 UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 1 All references to page numbers are to the page numbers assigned by the court’s Electronic Case Filing (ECF) system and not necessarily to page numbers within a particular document. 2