McCoy v. Brown et al
Filing
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ORDER adopting FINDINGS AND RECOMMENDATIONS regarding denial of Plaintiff's Motions to proceed in forma pauperis 10 , 12 , 18 signed by District Judge Anthony W. Ishii on 2/4/2019. 21-Day Filing Deadline.(Lundstrom, T)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JOSEPH RAYMOND McCOY,
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Plaintiff,
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v.
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Case No. 1:18-cv-00545-AWI-BAM (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS REGARDING
DENIAL OF PLAINTIFF’S MOTIONS TO
PROCEED IN FORMA PAUPERIS
BROWN, et al.,
(ECF Nos. 10, 12, and 18)
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Defendants.
TWENTY-ONE (21) DAY DEADLINE
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Plaintiff Joseph Raymond McCoy (“Plaintiff”) is a state prisoner proceeding pro se in this
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civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on April 23, 2018.
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(ECF No. 1.)
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On July 20, 2018, the assigned Magistrate Judge issued findings and recommendations
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that Plaintiff’s application to proceed in forma pauperis be denied and that Plaintiff be required to
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pay the $400.00 filing fee in full to proceed with this action. (ECF No. 12.) Those findings and
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recommendations were served on Plaintiff and contained notice that any objections thereto were
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to be filed within fourteen (14) days after service. (Id. at 3.) Following two extensions of time,
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Plaintiff filed objections to the findings and recommendations on October 26, 2018. (ECF No.
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17.) Plaintiff filed a supplemental objection on January 30, 2019. (ECF No. 18.)
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In his objections, Plaintiff reiterates his contention that his constitutional rights were
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violated by Defendants at an April 14, 2015 initial parole consideration hearing, and further
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violated on June 24, 2015 following the hearing. Plaintiff alleges that, following these alleged
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constitutional violations, his interest in liberty is ongoing, and therefore the imminent danger
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exception is satisfied.
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Plaintiff’s objections are unpersuasive. Plaintiff’s conclusory allegation that he has an
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ongoing interest in liberty (having an allegedly incorrect sentence changed) is not sufficient to
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demonstrate that he was in “imminent danger of serious physical injury.” In addition, none of
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Plaintiff’s remaining allegations pertain to events after 2015, and therefore cannot demonstrate
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that Plaintiff was in any danger of serious physical injury in 2018, when the complaint was filed.
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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 the case. Having carefully reviewed the entire file, including all of Plaintiff’s
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objections, the Court concludes that the Magistrate Judge’s Findings and Recommendations are
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supported by the record and proper analysis.
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Accordingly, IT IS HEREBY ORDERED that:
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1.
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adopted in full;
2.
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The Findings and Recommendations, (ECF No. 12), issued on July 20, 2018, are
In accordance with 28 U.S.C. § 1915(g), Plaintiff’s application to proceed in forma
pauperis (ECF No. 10) is denied; and
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Within twenty-one (21) days following the date of service of this order, Plaintiff
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shall pay the $400.00 filing fee in full to proceed with this action. If Plaintiff fails
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to pay the filing fee within the specified time, this action will be dismissed without
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further notice.
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IT IS SO ORDERED.
Dated: February 4, 2019
SENIOR DISTRICT JUDGE
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