(PC) Harper v. CDCR et al, No. 2:2021cv00130 - Document 9 (E.D. Cal. 2021)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Jeremy D. Peterson on 5/4/2021 ORDERING Clerk to randomly assign a U.S. District Judge to this case and RECOMMENDING 2 Motion to Proceed In Forma Pauperis be denied; Plaintiff be ordered to pay the $402 filing fee within 21 days of any order adopting these findings and recommendations; and if Plaintiff fails to pay the $400 filing fee within 21 days of any order adopting these findings and recommendations, this action be dismissed without prejudice. Assigned and referred to Judge Kimberly J. Mueller. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)

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(PC) Harper v. CDCR et al Doc. 9 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL HARPER, 12 13 14 15 Case No. 2:21-cv-00130-JDP (PC) Plaintiff, FINDINGS AND RECOMMENDATIONS DENYING MOTION TO PROCEED IN FORMA PAUPERIS AND REQUIRING PAYMENT OF FILING FEE IN FULL WITHIN TWENTY-ONE DAYS Defendants. ECF No. 2 v. CDCR, et al., 16 OBJECTIONS DUE WITHIN 14 DAYS 17 ORDER TO ASSIGN CASE TO DISTRICT JUDGE 18 19 20 Plaintiff, a state prisoner proceeding without counsel, has filed a complaint alleging 21 claims under 42 U.S.C. § 1983, and an application to proceed in forma pauperis. ECF No. 1 & 2. 22 In an order filed March 4, 2021, I observed that plaintiff appeared to be prohibited from 23 proceeding in forma pauperis because he has previously had three actions dismissed for failure to 24 state a claim. ECF No. 7; 28 U.S.C. § 1915(g). I noted that plaintiff would still be permitted to 25 proceed in forma pauperis if his complaint alleged that he is in imminent danger of serious 26 physical injury. Because the complaint’s allegations—which relate to disciplinary proceedings 27 and plaintiff’s placement in administrative segregation—did not show that plaintiff was imminent 28 danger, plaintiff was ordered to show cause within twenty-one days why, in spite of his “three1 Dockets.Justia.com 1 striker” status, he should be allowed to proceed in form pauperis. ECF No. 2. Plaintiff was also 2 warned that failure to provide an adequate justification for being allowed to proceed in forma 3 pauperis would result in a recommendation that his application be denied. The deadline has passed, and plaintiff has not responded to the court’s March 4, 2021 4 5 order. Accordingly, it is ORDERED that the Clerk of Court shall randomly assign a United 6 States District Judge to this case. 7 Further, it is RECOMMENDED that: 8 1. Plaintiff’s application to proceed in forma pauperis, ECF No. 2, be denied for the 9 reasons set forth in the March 4, 2021 order. 10 11 2. Plaintiff be ordered to pay the $402 filing fee within twenty-one days of any order adopting these findings and recommendations. 12 13 3. If plaintiff fails to pay the $400 filing fee within twenty-one days of any order adopting these findings and recommendations, this action be dismissed without prejudice. 14 These findings and recommendations are submitted to the United States District Judge 15 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 16 after being served with these findings and recommendations, any party may file written 17 objections with the court and serve a copy on all parties. Such a document should be captioned 18 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 19 within the specified time may waive the right to appeal the District Court’s order. Turner v. 20 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 21 22 IT IS SO ORDERED. 23 Dated: 24 25 May 4, 2021 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 26 27 28 2 1 2 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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