Manago v. Gonzalez et al

Filing 9

ORDER ADOPTING 7 FINDINGS AND RECOMMENDATIONS IN FULL; ORDER DENYING 5 Motion to Proceed IFP; and ORDER DIRECTING Plaintiff to Pay the Filing Fee Within 14 Days, signed by Chief Judge Anthony W. Ishii on 3/10/2012. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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STEWART MANAGO,

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Plaintiff,
v.
F. GONZALEZ, et al.,
Defendants.

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CASE NO. 1:11-cv-02003-JLT PC
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS THAT
PLAINTIFF’S APPLICATION TO PROCEED
IN FORMA PAUPERIS BE DENIED
(Doc. 5, 7, 8)

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Plaintiff Stewart Manago, a state prisoner proceeding pro se, filed this civil rights action

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pursuant to 42 U.S.C. § 1983. On January 5, 2012, Plaintiff filed a motion to proceed in forma

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pauperis (“IFP”). (Doc. 5.)

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On January 25, 2012, the Magistrate Judge issued Findings and Recommendations that the

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motion to proceed IFP be denied. (Doc. 7) The Magistrate Judge determined that Plaintiff has filed

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three prior actions that were dismissed as frivolous or for failing to state a claim upon which relief

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could be granted. Id. at 2. In addition, the Magistrate Judge noted that Plaintiff’s complaint did not

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demonstrate that he was in imminent danger of serious physical injury. Id. Though Plaintiff alleged

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that his ribs may have healed improperly, there was no allegation that this mal-healing placed him

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in imminent danger of physical harm. Id. at 3.

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On February 3, 2012, Plaintiff filed his “motion for reconsideration” which the Court

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construes as his objections to the Findings and Recommendations. (Doc. 8) In the document,
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Plaintiff cites only to his improperly healed ribs but impliedly admits that this medical condition

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does not place him in imminent danger at this time. Id. at 1-2. However, he urges the Court not to

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let the harm he has suffered to go unredressed. Id. at 3. The Findings and Recommendations

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determine only whether Plaintiff will be permitted to proceed IFP not whether he is permitted to

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pursue his current litigation. The fact that Plaintiff has filed three previous matters that were

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frivolous or that failed to state a claim determines that he is no longer eligible to proceed IFP.

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However, Plaintiff is free to proceed in this matter but he will have to do so at his own expense.

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Therefore, in accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C) and Britt v. Simi

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Valley United School Dist., 708 F.2d 452, 454 (9th Cir. 1983), this Court has conducted a de novo

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review of the case. Having carefully reviewed the entire file, the Court finds that the findings and

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recommendation are 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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The findings and recommendations filed January 25, 2012, are ADOPTED IN
FULL;

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2.

The motion to proceed in forma pauperis is DENIED;

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3.

Plaintiff SHALL pay the filing fee within 14 days of the date of service of this order

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or the matter SHALL be dismissed.
IT IS SO ORDERED.

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Dated:
0m8i78

March 10, 2012
CHIEF UNITED STATES DISTRICT JUDGE

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