Stephen v. Montejo et al
Filing
146
ORDER signed by Chief District Judge Kimberly J. Mueller on 11/14/2022 ADOPTING 128 The Findings and Recommendations in full, with the one correction noted above; DENYING 114 Motion to Amend the Complaint; To the extent Plaintiff moves for an injunction against non-defendant Dr. Aung Nay, that motion 124 is DENIED; and This case is referred back to the assigned Magistrate Judge for all further pretrial proceedings. (Mena-Sanchez, L)
Case 2:18-cv-01796-KJM-DB Document 146 Filed 11/15/22 Page 1 of 2
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JIMMIE EARL STEPHEN,
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Plaintiff,
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v.
No. 2:18-cv-1796 KJM DB P
ORDER
E. MONTEJO,
Defendant.
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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief
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under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided
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by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
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On June 29, 2022, the magistrate judge filed findings and recommendations, which were
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served on all parties and which contained notice to all parties that any objections to the findings
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and recommendations were to be filed within thirty days. Plaintiff has filed objections to the
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findings and recommendations, ECF No. 130, and defendant has responded, ECF No. 132.
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this
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court has conducted a de novo review of this case. Having reviewed the file, the court finds the
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findings and recommendations to be supported by the record and by the proper analysis. The
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findings and recommendations rely on Williams v. Paramo in determining this court must assess
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the validity of Stephen’s “imminent danger” claim based on conditions at the time the complaint
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Case 2:18-cv-01796-KJM-DB Document 146 Filed 11/15/22 Page 2 of 2
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was filed. 775 F.3d 1182, 1189 (9th Cir. 2015) (holding courts of appeal must examine if a
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prisoner “allege[d] the continued existence of imminent danger” at the time of filing an appeal to
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qualify for the PLRA three strikes exception). The Ninth Circuit opinion establishing this
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timeline for district courts is Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007).
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Accordingly, IT IS HEREBY ORDERED that:
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1. The findings and recommendations filed June 29, 2022, are adopted in full, with the
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one correction noted above;
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2. Plaintiff’s motion to amend the third amended complaint (ECF No. 114) is denied;
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3. To the extent plaintiff moves for an injunction against non-defendant Dr. Aung Nay,
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that motion (ECF No. 124) is denied; and
4. This case is referred back to the assigned magistrate judge for all further pretrial
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proceedings.
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DATED: November 14, 2022.
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