Davis v. Kelso et al

Filing 42

ORDER Adopting 38 FINDINGS AND RECOMMENDATIONS signed by District Judge Lawrence J. O'Neill on 10/19/2011; Plaintiff's IFP status is REVOKED; The order 4 directing the Director of CDC to deduct the $350.00 filing fee from Plaintiff 's trust account is VACATED; Plaintiff is ORDERED to pay the $350.00 filing fee in full WITHING THIRTY (30) DAYS; Clerk is DIRECTED to serve a copy of this order on (1) the Financial Department, and (2) the Director of CDC. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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CHARLES T. DAVIS,

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CASE NO: 1:10-cv-01184-LJO-GBC (PC)

Plaintiff,

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ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS

v.
(Doc. 38)

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CLARK J. KELSO, et al.,

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Defendants.
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/

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I.

Procedural History

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Charles T. Davis ("Plaintiff') is a state prisoner proceeding pro se and in forma pauperis
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("IFP") in this civil rights action pursuant to 42 U.S.C. § 1983. This action was filed on July 1, 2010.
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(Doc. 1). On April 22, 2011, the Court issued an Order to Show Cause as to why Plaintiff's IFP
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status should not be revoked pursuant to 28 U.S.C. § 1915(g). (Doc. 15). On May 4, 2011, Plaintiff
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filed a response. (Doc. 18). On September 8, 2011, the Magistrate Judge filed a Findings and
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Recommendations herein which was served on Plaintiff which contained notice that any objections
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to the Findings and Recommendations were to be filed within thirty days. (Doc. 38). After being
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granted an extension of time, October 18, 2011, Plaintiff filed objections. (Doc. 41).
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II.

Review of Plaintiff’s Objections

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In Plaintiff’s objections, he resubmits many of the same arguments as in his response to the
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Order to Show Cause and argues at length his interpretation as to what should constitute as
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“frivolous” under 28 U.S.C. § 1915(g). (Doc. 41). This Court will address all in lengthy detail

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Plaintiff’s numerous objections and case law cited, and instead will address in writing new

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arguments not previously addressed. Plaintiff argues that the Magistrate Judge erred in determining

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the lack of imminent danger based on a prior order determining that Plaintiff failed to state a claim

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and denying emergency injunctive relief based on the same facts that Plaintiff alleges that he has a

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valid imminent danger claim. Plaintiff urges this Court to review the underlying complaint and

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record and find that Plaintiff’s claims regarding Valley Fever constitute imminent danger. (Doc. 41

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at 6). This Court finds the Findings and Recommendations to be correct in finding that where the

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imminent danger claim fails to state a claim upon which relief could be granted, it cannot qualify

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under the imminent danger exception pursuant to 28 U.S.C. § 1915(g).

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Although, Plaintiff argues that dismissals with leave to amend do not count as strikes under

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§ 1915(g) (Doc. 41 at 22), it does not appear from the record that the dismissals that were deemed

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strikes were dismissed with leave to amend. Although Plaintiff asserts that Davis v. Alameida, et

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al., No. 05-17055, was merely affirming the trial court decision (Doc. 41 at 36), upon review, the

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appellate court denied IFP on appeal and dismissed for failure to prosecute. (Doc. 41 at 57, 59);

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Davis v. Alameida, et al., No. 05-17055.

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III.

Conclusion and Order
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a

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de novo review of this case. Having carefully reviewed the entire file, the Court finds the

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Findings and Recommendations to be supported by the record and by proper analysis.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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(Doc. 38);
2.

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The Findings and Recommendations filed on September 8, is adopted in full

Plaintiff’s in forma pauperis status is REVOKED pursuant to 28 U.S.C. §
1915(g);

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The order on July 6, 2010 (Doc. 4), directing the Director of the California
Department of Corrections and Rehabilitation or his designee to deduct the
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$350.00 filing fee from Plaintiff’s trust account whenever the balance exceeds

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$10.00 is VACATED;

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4.

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Plaintiff is ordered to pay the $350.00 filing fee in full within thirty (30) days or
this action will be dismissed, without prejudice; and

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5.

The Clerk of the Court is directed to serve a copy of this order on (1) the Financial

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Department, U.S. District Court, Eastern District of California, Fresno Division

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and (2) the Director of the California Department of Corrections and

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Rehabilitation via the court's electronic case filing system (CM/ECF).

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IT IS SO ORDERED.
Dated:
b9ed48

October 19, 2011

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

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