Stephen v. Montejo et al

Filing 93

ORDER signed by Chief District Judge Kimberly J. Mueller on 11/30/2020 ADOPTING 59 Findings and Recommendations in full. Plaintiff's 53 request for preliminary injunctive relief is DENIED. The 86 Findings and Recommendations are ADOPTED in full. Defendant's 78 request for judicial notice is GRANTED as to plaintiff's litigation history and DENIED in all other respects. Defendant's 77 motion to revoke plaintiff's in forma pauperis status is GRANTED. Within thirty days of the date of this order, plaintiff shall pay the $400 filing fee if he wishes to proceed with this case. Plaintiff's failure to do so will result in dismissal of this action. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JIMMIE STEPHEN,

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Plaintiff,

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No. 2:18-cv-1796 KJM DB P

v.

ORDER

E. MONTEJO,

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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.
On February 3, 2020, the magistrate judge filed findings and recommendations, which

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were served on all parties and which contained notice to all parties that any objections to the

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findings and recommendations were to be filed within fourteen days. Neither party has filed

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objections to these findings and recommendations.
On June 12, 2020, the magistrate judge filed a separate set of findings and

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recommendations, which were served on all parties and which contained notice to all parties that

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any objections to the findings and recommendations were to be filed within thirty days. Plaintiff

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has filed objections to these recommendations.

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Regarding the February 3 findings and recommendations, the court presumes any findings

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of fact are correct. See Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979). The

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magistrate judge’s conclusions of law are reviewed de novo. See Robbins v. Carey, 481 F.3d

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1143, 1147 (9th Cir. 2007) (“[D]eterminations of law by the magistrate judge are reviewed de

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novo by both the district court and [the appellate] court . . . .”).

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Regarding the June 12 findings and recommendations, in accordance with the provisions

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of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this court has conducted a de novo review of

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this case. Having reviewed the file, the court finds the findings and recommendations to be

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supported by the record and by the proper analysis.1

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed February 3, 2020, are adopted in full;

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2. Plaintiff’s request for preliminary injunctive relief (ECF No. 53) is denied; and

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3. The findings and recommendations filed June 12, 2020 are adopted in full:

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a. Defendant’s request for judicial notice (ECF No. 78) is granted as to plaintiff’s
litigation history and denied in all other respects;

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b. Defendant’s motion to revoke plaintiff’s in forma pauperis status (ECF No. 77)
is granted; and

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c. Within thirty days of the date of this order, plaintiff shall pay the $400 filing fee

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if he wishes to proceed with this case. Plaintiff’s failure to do so will result in dismissal of this

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action.

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DATED: November 30, 2020.

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The court modifies the sentence beginning at page 10, line 12, of the February 3, 2020 findings
and recommendations, to read as follows: Because this further testing did not occur until
December 26, 2019, see Obj. to F&Rs, ECF No. 89, at 29 (medical progress notes documenting
plaintiff was seen for a follow up visit where doctor “referred [plaintiff] to radiation oncology for
prostate cancer treatment”), after plaintiff filed this action in June 2018, it cannot form the basis
for any assertion that plaintiff was in imminent danger of serious physical harm at the time he
filed here.
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