Hendon v. Davey

Filing 7

ORDER ADOPTING 4 FINDINGS AND RECOMMENDATIONS IN FULL; ORDER DENYING 2 Plaintiff's Motion to Proceed IFP; and ORDER DIRECTING Plaintiff to Pay the Filing Fee in Full Within Thirty (30) Days signed by District Judge Dale A. Drozd on 7/10/2017. (Jessen, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CARLOS HENDON,

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No. 1:17-cv-00661-DAD-SAB

Plaintiff,

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v.

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DAVEY,

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ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS, DENYING
APPLICATION TO PROCEED IN FORMA
PAUPERIS, AND DIRECTING PLAINTIFF
TO PAY THE $400 FILING FEE WITHIN
THIRTY DAYS FROM THE DATE OF
SERVICE OF THIS ORDER

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(Doc. Nos. 2, 4)

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Defendant.

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Plaintiff Carlos Hendon is appearing pro se in this civil rights action pursuant to 42 U.S.C.

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§ 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C.

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§ 636(b)(1)(B) and Local Rule 302.

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On May 15, 2017, the assigned magistrate judge filed a findings and recommendations,

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recommending that plaintiff’s application to proceed in forma pauperis be denied, and plaintiff be

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required to pay the $400 filing fee. (Doc. No. 4.) The findings and recommendations were

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served on plaintiff and contained notice that objections thereto were to be filed within thirty days.

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(Id.) On May 24, 2017, and again on June 12, 2017, plaintiff filed objections to the findings and

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recommendations.
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a

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de novo review of this case. Having carefully reviewed the entire file, including plaintiff’s

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objections, the court finds the findings and recommendations to be supported by the record and

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by proper analysis. In his objections, plaintiff contends in conclusory fashion that he will soon be

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transferred back to Corcoran’s Security Housing Unit (“SHU”); however, plaintiff makes no

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specific allegations supporting his claim in this regard. Plaintiff’s complaint relates to alleged

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conditions of confinement in the Corcoran SHU in 2015, and plaintiff is presently confined at

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California State Prison, Sacramento. Any claim that plaintiff will be returned to the Corcoran

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SHU is speculative, at best. Such speculative allegations fall short of establishing “imminent

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danger of serious physical injury.” Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007)

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(“[T]he availability of the exception turns on the conditions a prisoner faced at the time the

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complaint was filed, not at some earlier or later time.”). Indeed, plaintiff made these same

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allegations in Hendon v. Davey, 2:17-cv-00169-KJN (PC), wherein the court rejected plaintiff’s

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argument, denied in forma pauperis status, and dismissed his action on May 4, 2017, after

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plaintiff had failed to pay the required filing fee.

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Accordingly,

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1. The May 15, 2017 findings and recommendations (Doc. No. 4) are adopted in full;

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2. Plaintiff’s application to proceed in forma pauperis (Doc. No. 2) is denied; and

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3. Within thirty days from the date of service of this order, plaintiff shall pay the required

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$400 filing fee; and
4. Any failure on plaintiff’s part to pay the required filing fee within the time provided

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by this order will result in the dismissal of this action.
IT IS SO ORDERED.
Dated:

July 10, 2017
UNITED STATES DISTRICT JUDGE

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