(PC) Harris v. Phillips, et al.

Filing 19

ORDER ADOPTING 12 Findings and Recommendations Denying 2 Plaintiff's Motion to Proceed In Forma Pauperis and Directing Plaintiff to Pay the Filing Fee in Full Within Thirty (30) Days signed by District Judge Jennifer L. Thurston on 6/5/2024. (Lawrence, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARVIN HARRIS,
Plaintiff,

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v.
BYAN D. PHILLIPS, et al.,
Defendants.

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Case No.: 1: 23-cv-1051 JLT SAB (PC)
ORDER ADOPTING THE FINDINGS AND
RECOMMENDATIONS DENYING PLAINTIFF’S
MOTION TO PROCEED IN FORMA PAUPERIS
AND DIRECTING PLAINTIFF TO PAY THE
FILING FEE IN FULL WITHIN 30 DAYS
(Docs. 2, 12)

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Marvin Harris moved to proceed in forma paupers when he initiated this action, in which he

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seeks to hold the defendants liable for violations of his civil rights. (Doc. 2.) The magistrate judge

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found Plaintiff is subject to the three-strikes provision of 28 U.S.C. § 1915(g), because he had more

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than three cases dismissed as frivolous or for failure to state a claim prior to filing the complaint in this

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action. (Doc. 12 at 2.) In addition, the magistrate judge found Plaintiff did not satisfy the imminent

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danger exception, because “Plaintiff makes no allegation of imminent danger of serious physical injury

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at the time he filed his complaint.” (Id. at 3.) Therefore, the magistrate judge found Plaintiff was not

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entitled to proceed in forma pauperis in this action, and recommended his motion be denied. (Id.)

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Plaintiff filed objections to the Findings and Recommendations with a Notice of Appeal, which

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included the Findings and Recommendations as an attachment. (See Doc. 14; see also id. at 6-8.) The

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Ninth Circuit dismissed Plaintiff’s appeal, and indicated its order of dismissal constituted its mandate,

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on March 28, 2024. (Doc. 18 at 1.) Importantly, a review of the Objections/ Notice of Appeal
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establishes that Plaintiff does not dispute the determination that he is subject to the three-strike rule of

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28 U.S.C. § 1915(g) or show that he was imminent danger of serious physical injury.

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According to 28 U.S.C. § 636(b)(1)(C), this Court performed a de novo review of this case.

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Having carefully reviewed the matter, the Court concludes the Findings and Recommendations are

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supported by the record and proper analysis. Thus, the Court ORDERS:

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1.

The Findings and Recommendations issued July 17, 2023 (Doc. 12) are ADOPTED.

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2.

Plaintiff’s motion to proceed in forma pauperis (Doc. 2) is DENIED.

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3.

Plaintiff SHALL pay the $405 filing fee in full for this action within 30 days of the date
of service of this order.

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Plaintiff’s is advised failure to comply with this order will result in dismissal of this action.

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IT IS SO ORDERED.
Dated:

June 5, 2024

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