Wilson v. Tucci et al.
Filing
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ORDER signed by District Judge Kimberly J. Mueller on 3/10/17 ORDERING that the findings and recommendations filed September 7, 2016, are NOT ADOPTED; and this matter is REFERRED back to the assigned magistrate judge for further proceedings consistent with this order.(Becknal, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DAVID W. WILSON,
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No. 2:15-cv-2404-KJM-CMK P
Plaintiff,
v.
ORDER
NICOLE M. TUCCI, et al.,
Defendants.
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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 as provided by
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Eastern District of California local rules.
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On September 7, 2016, the Magistrate Judge filed findings and recommendations,
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which were served on the parties and which contained notice that the parties may file objections
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within a specified time. Objections to the findings and recommendations have been filed.
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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(f), this court has conducted a de novo review of this case. Having reviewed the file, the court
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declines to adopt the findings and recommendations and refers the matter back to the assigned
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magistrate judge for further proceedings consistent with this order.
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The magistrate judge finds that plaintiff has previously been found to be barred
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from proceeding in forma pauperis in accordance with the provisions of 28 U.S.C. § 1915(g).
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ECF No. 15 at 2. The finding is supported by the cases cited in the findings and
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recommendations. Id. The magistrate judge also finds that “nothing in the complaint indicates
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plaintiff is or was under imminent danger of serious physical injury.” Id. While this appears
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correct with respect to most of the allegations of the complaint, it is not clear that it is correct with
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respect to the allegations found in the paragraphs identified as number 9 on page 51 and number
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50 on page 31 of the complaint, ECF No. 1. A prisoner who adequately alleges facts which
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support application of “the ‘imminent danger’ exception” to the 1915(g) bar must be allowed to
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proceed in forma pauperis even if “the ‘imminent danger’ exception applies to only one claim.”
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Andrews v. Cervantes, 493 F.3d 1047, 1054 (9th Cir. 2007).
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Good cause appearing, this matter will be referred back to the assigned magistrate
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judge for further consideration in light of Andrews and this order. Accordingly, IT IS HEREBY
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ORDERED that:
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1. The findings and recommendations filed September 7, 2016, are not adopted;
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and
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2. This matter is referred back to the assigned magistrate judge for further
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proceedings consistent with this order.
DATED: March 10, 2017
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UNITED STATES DISTRICT JUDGE
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