(PC) Williams v. Passini et al, No. 2:2017cv01362 - Document 12 (E.D. Cal. 2018)
Court Description: ORDER signed by District Judge Kimberly J. Mueller on 8/20/18. The court DECLINES to adopt the Findings and Recommendations 8 and instead REFERS the matter back to the Magistrate judge for further proceedings to develop the record as necessary for consideration of whether the information contained in Plaintiff's objections support the "imminent danger" exception. (Mena-Sanchez, L)
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(PC) Williams v. Passini et al Doc. 12 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LANCE WILLIAMS, 12 Plaintiff, 13 14 No. 2:17-cv-1362 KJM CKD P v. ORDER MATILDA PASSINI, et al., 15 Defendants. 16 Williams, a state prisoner proceeding pro se, filed this civil rights action seeking 17 18 relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as 19 provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On March 19, 2018, the magistrate judge filed findings and recommendations 20 21 (“Findings”), which were served on Williams, containing notice that any objections must be filed 22 within fourteen days. Findings, ECF No. 8. The Findings recommend dismissing Williams’ civil 23 rights complaint filed July 7, 2017, for not paying a $400 filing fee within the mandated 14-day 24 period; Williams must pay because he was stripped of his in forma pauperis (“IFP”) status for 25 having three or more prior actions dismissed as “frivolous, malicious, or fails to state a claim.” 26 28 U.S.C. § 1915(g) (1996); Findings at 1. On March 30, 2018, Williams timely filed objections. 27 ECF No. 9. Williams argues that because he was, and is currently, “under imminent danger at the 28 ///// 1 Dockets.Justia.com 1 time of complaint[] filing, he qualifies for an exception that grants IFP status if a prisoner is under 2 “imminent danger of serious physical injury.” Id. at 1. 3 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, 4 this court has conducted a de novo review of this case. See Britt v. Simi Valley Unified Sch. Dist., 5 708 F.2d 452, 454 (9th Cir. 1983). The court presumes findings of fact are correct. See Orand v. 6 United States, 602 F.2d 207, 208 (9th Cir. 1979). Having reviewed the file, the court finds 7 Williams’ objections, while unverified, raise new information that may change the magistrate 8 judge’s recommendation because he appears to provide facts plausibly supporting § 1915(g)’s 9 “imminent danger exception.” Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007); see, 10 e.g., Objections at 1, 3, 5–6, 8–9, 11–12 (alleging assault and threats of injury by a correctional 11 officer and inmates). While noting that the objections were not before the magistrate judge, the 12 court DECLINES to adopt the findings and recommendations and instead REFERS the matter 13 back to the magistrate judge for further proceedings to develop the record as necessary for 14 consideration of whether the information contained in plaintiff’s objections support the 15 “imminent danger” exception. 16 IT IS SO ORDERED. 17 This resolves ECF No. 8. 18 DATED: August 20, 2018. 19 20 UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28 2
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