Bontemps v. Baker, et al.

Filing 7

ORDER signed by Magistrate Judge Craig M. Kellison on 07/13/17 ordering this action is dismissed without prejudice to re-filing upon pre-payment of the filing fees. The clerk of the court is directed to close this case. CASE CLOSED. (Plummer, M)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GREGORY C. BONTEMPS, 12 13 14 15 Plaintiff, vs. ORDER BAKER, et al., Defendants. 16 17 No. 2:16-cv-2814-CMK-P / Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant 18 to 42 U.S.C. § 1983. Plaintiff has consented to Magistrate Judge jurisdiction pursuant to 28 19 U.S.C. § 636(c) and no other party has been served or appeared in the action. The court issued 20 an order to show cause on May 15, 2017, requiring plaintiff to show cause why this action should 21 not be dismissed. 22 The court found it had previously determined plaintiff is barred from proceeding 23 in forma pauperis pursuant to 28 U.S.C. § 1985(g), and that it did not appear that plaintiff was 24 under imminent danger of serious physical injury when he filed the complaint. Plaintiff has filed 25 a response to the order to show cause. In his response, plaintiff argues he is in imminent danger 26 of serious physical injury as the correctional officers at California State Prison - Sacramento 1 1 (CSP-Sac) continue to use excessive force against him. He claims this has been an on-going 2 problem, and because he continues to be housed at CSP-Sac, he continues to be in danger of 3 additional use of force against him. However, as set forth in the order to show cause, the use of 4 excessive force he alleged in his complaint consisted of placing handcuffs on him in an 5 unreasonable manner, causing pain in his wrists and marks on his skin. Plaintiff states he 6 continues to be at risk of additional use of force, but fails to elaborate as to any specific incidents 7 or any severe and/or dangerous use of force. The undersigned previously found incorrect 8 placement of handcuffs is not severe enough to amount to an Eighth Amendment violation, much 9 less to show plaintiff was in imminent danger of serious physical injury. Plaintiff offers nothing 10 more serious in his response to the order to show cause and the undersigned finds plaintiff has 11 not shown he has met the standard to proceed IFP. 12 Accordingly, IT IS HEREBY ORDERED that: 13 1. 14 15 This action is dismissed without prejudice to re-filing upon pre-payment of the filing fees; and 2. The Clerk of the Court is directed to close this case. 16 17 18 19 DATED: July 13, 2017 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 2

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