Blackman v. Newsome

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TONY BLACKMAN, Case No. 1:24-cv-1267 JLT CDB (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING 13 v. PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS, AND DIRECTING 14 GAVIN NEWSOME, et al., PLAINTIFF TO PAY THE FILING FEE WITHIN 30 DAYS 15 Defendants. (Docs. 2, 5) 16 17 Tony Blackman, a state prisoner proceeding pro se, seeks to proceed in forma pauperis in 18 this action. (Docs. 1, 2.) The magistrate judge found Plaintiff had at least three “strikes” under 19 28 U.S.C. § 1915 prior to filing this action and “is therefore subject to the section 1915(g) bar.” 20 (Doc. 5 at 3-4.) The magistrate judge observed that in the complaint, “Plaintiff alleges that 21 Defendants rejected his appeals, denied him access to the law library, retaliated against Plaintiff 22 and involuntarily transferred him to a different facility, and falsely imprisoned him.” (Id. at 4-5.) 23 The magistrate judge found these allegations do not establish that Plaintiff faced “imminent 24 danger of serious physical injury at the time he filed the complaint.” (Id. at 5.) Therefore, the 25 magistrate judge found the imminent danger exception to section 1915(g) inapplicable and 26 recommended the motion to proceed in forma pauperis be denied. (Id.) 27 The Court served the Findings and Recommendations on Plaintiff and notified him that 28 any objections were due within 14 days. (Doc. 5 at 5.) The Court advised Plaintiff that “failure 1 | to file any objections within the specified time may result in the waiver of certain rights on 2 | appeal.” (/d. at 6, citing Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014).) 3 Plaintiff did not file any objections, and the time to do so has passed. However, Plaintiff 4 | filed an amended complaint on November 6, 2024. (Doc. 6.) Plaintiff attached a “Notice of 5 | Electronic Filing” concerning the Findings and Recommendations to this amended complaint, and 6 | notations on the page assert: “U.S. federal court officials refuse to acknowledge by wrongfully 7 | forcing Plaintiff who’s in restraints behind state prison close door to pay money to receive 8 | procedure protection U.S. Federal Court order of reassignment on Governor of California Mr. 9 | Gavin Newsome.” (/d. at 10.) Thus, it appears Plaintiff disagrees with the recommendation that 10 | he be directed to pay the filing fee to proceed with this action against the Governor and the other 11 | named defendants. (See id.) However, Plaintiff does not dispute the finding that he has three 12 | strikes under Section 1915 nor does he allege additional facts that establish he is at risk of 13 | imminent danger of serious physical injury. 14 According to 28 U.S.C. § 636(b)(1), this Court performed a de novo review of this case. 15 || Having carefully reviewed the matter, the Court concludes the Findings and Recommendations 16 || are supported by the record and proper analysis. Thus, the Court ORDERS: 17 1. The Findings and Recommendations issued on October 24, 2024 (Doc. 5) are 18 ADOPTED in full. 19 2. Plaintiff's motion to proceed in forma pauperis (Doc. 2) is DENIED. 20 3. Plaintiff SHALL pay in full the $405.00 filing fee if he wishes to proceed with his 21 action, within 30 days from the date of service of this order. 22 Plaintiff is advised that failure to pay the required filing fee as ordered will result in 23 the dismissal of this action without prejudice. 24 95 IT IS SO ORDERED. | Dated: _ November 19, 2024 Charis [Tourn TED STATES DISTRICT JUDGE 27 28