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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CARLOS HENDON, 12 No. 1:17-cv-00661-DAD-SAB Plaintiff, 13 v. 14 DAVEY, 16 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 17 (Doc. Nos. 2, 4) 15 Defendant. 18 19 20 Plaintiff Carlos Hendon is appearing pro se in this civil rights action pursuant to 42 U.S.C. 21 § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. 22 § 636(b)(1)(B) and Local Rule 302. 23 On May 15, 2017, the assigned magistrate judge filed a findings and recommendations, 24 recommending that plaintiff’s application to proceed in forma pauperis be denied, and plaintiff be 25 required to pay the $400 filing fee. (Doc. No. 4.) The findings and recommendations were 26 served on plaintiff and contained notice that objections thereto were to be filed within thirty days. 27 (Id.) On May 24, 2017, and again on June 12, 2017, plaintiff filed objections to the findings and 28 recommendations. 1 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 2 de novo review of this case. Having carefully reviewed the entire file, including plaintiff’s 3 objections, the court finds the findings and recommendations to be supported by the record and 4 by proper analysis. In his objections, plaintiff contends in conclusory fashion that he will soon be 5 transferred back to Corcoran’s Security Housing Unit (“SHU”); however, plaintiff makes no 6 specific allegations supporting his claim in this regard. Plaintiff’s complaint relates to alleged 7 conditions of confinement in the Corcoran SHU in 2015, and plaintiff is presently confined at 8 California State Prison, Sacramento. Any claim that plaintiff will be returned to the Corcoran 9 SHU is speculative, at best. Such speculative allegations fall short of establishing “imminent 10 danger of serious physical injury.” Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007) 11 (“[T]he availability of the exception turns on the conditions a prisoner faced at the time the 12 complaint was filed, not at some earlier or later time.”). Indeed, plaintiff made these same 13 allegations in Hendon v. Davey, 2:17-cv-00169-KJN (PC), wherein the court rejected plaintiff’s 14 argument, denied in forma pauperis status, and dismissed his action on May 4, 2017, after 15 plaintiff had failed to pay the required filing fee. 16 Accordingly, 17 1. The May 15, 2017 findings and recommendations (Doc. No. 4) are adopted in full; 18 2. Plaintiff’s application to proceed in forma pauperis (Doc. No. 2) is denied; and 19 3. Within thirty days from the date of service of this order, plaintiff shall pay the required 20 21 $400 filing fee; and 4. Any failure on plaintiff’s part to pay the required filing fee within the time provided 22 23 24 by this order will result in the dismissal of this action. IT IS SO ORDERED. Dated: July 10, 2017 UNITED STATES DISTRICT JUDGE 25 26 27 28 2

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