Harris v. Deloney, et al
Filing
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ORDER ADOPTING 9 AMENDED FINDINGS AND RECOMMENDATIONS in part signed by Judge Kimberly J. Mueller on 12/14/11 and ORDERING that plaintiff's 7 Motion to Proceed IFP is DENIED; plaintiff has 30 days from the entry of this order in which to submit the filing fee of $350.00. Failure to pay the filing fee will result in dismissal of this action without prejudice. (Benson, A.)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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MARVIN HARRIS,
Plaintiff,
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vs.
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No. CIV S-11-2175-KJM-CMK-P
ORDER
M. DELONEY, et al.,
Defendants.
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/
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Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 42
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U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to Eastern
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District of California local rules.
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On September 14, 2011, the magistrate judge filed amended findings and
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recommendations, which were served on the parties and which contained notice that the parties
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may file objections within a specified time. Plaintiff has filed timely objections to the amended
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findings and recommendations.
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule
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304, this court has conducted a de novo review of this case. Having carefully reviewed the file,
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the court finds the findings and recommendations overall to be supported by the record and by
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the proper analysis. Plaintiff’s conclusory objection, that he is facing imminent danger, does not
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change this conclusion. However, the court notes that there is a split within this district
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regarding whether 28 U.S.C. § 1915(g) mandates dismissal. See Rasheed v. Castro, 2010 U.S.
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Dist. LEXIS 53982 (E.D. Cal. Apr. 30, 2010) (granting plaintiff thirty days to submit filing fee);
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Harper v. Cal. Dept. Corr., 2010 U.S. Dist. LEXIS 56513 (E.D. Cal. Jun. 7, 2010) (granting
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plaintiff thirty days to file amended complaint and submit filing fee), adopted by 2010 U.S. Dist.
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LEXIS 96415 (E.D. Cal. Sep. 15, 2010). But see Prophet v. Clark, 2009 U.S. Dist. LEXIS
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57940 (E.D. Cal. Jun. 22, 2009) (dismissing and directing plaintiff to file complaint in new civil
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case and pay filing fee); Campbell v. Vance, 2005 U.S. Dist. LEXIS 30203 (E.D. Cal. Nov. 30,
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2005) (dismissing case), adopted by 2006 U.S. Dist. LEXIS 543 (E.D. Cal. Jan. 9, 2006). Given
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the current state of the law, the undersigned has determined that dismissal is not mandated and
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therefore declines to adopt the amended recommendations insofar as the magistrate judge
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recommends dismissal without prejudice.
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Accordingly, IT IS HEREBY ORDERED that:
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1.
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are adopted in part;
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The amended findings and recommendations filed September 14, 2011,
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Plaintiff’s motion for leave to proceed in forma pauperis (ECF No. 7) is
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Plaintiff has thirty (30) days from the entry of this order in which to
denied; and
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submit the filing fee of $350.00. Failure to pay the filing fee will result in dismissal of this action
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without prejudice.
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DATED: December 14, 2011.
UNITED STATES DISTRICT JUDGE
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