(PC) Kelly v. Newsom

Opinion

JAMES CARL KELLY, Case No. 1:25-cv-00154 JLT EPG (PC) Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DIRECTING v. PLAINTIFF TO PAY THE FILING FEE WITHIN 30 DAYS GAVIN NEWSOM, et al., (Doc. 13) Defendants. James Kelly, confined at Kern Valley State Prison, filed this action in which he alleges that as he moves around different prisons, doctors take away his medical equipment—wheelchair, walker, cane—thus violating his civil rights. (Doc. 1.) Plaintiff failed to either pay the filing fee or file a motion to proceed in forma pauperis. In reviewing Plaintiff’s litigation history, the magistrate judge identified four actions that qualified as strikes under 28 U.S.C. § 1915(g). (Doc. 13 at 2–3.) In addition, the magistrate judge found “Plaintiff has failed to demonstrate that he was in imminent danger of physical injury when he filed the complaint,” noting Plaintiff reported his cane was returned prior to the filing of the complaint. (Id. at 4.) The magistrate judge found the imminent danger exception to Section 1915 does not apply and filing a motion to proceed in forma pauperis would be futile. (Id. at 4.) Thus, the magistrate judge recommended that the Court require Plaintiff to pay the filing fee in full. (Id. at 5.) The Court served the Findings and Recommendations on Plaintiff and notified him that any objections were due within 30 days. (Doc. 13 at 5.) The Court advised Plaintiff the “failure to file objections within the specified time may result in the waiver of rights on appeal.” (d., citing Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014).) Plaintiff did not file any objections and the time to do so has passed. According to 28 U.S.C. § 636(b)(1), this Court performed a de novo review of this case. Having carefully reviewed the matter, the Court concludes the Findings and Recommendations are supported by the record and proper analysis. Thus, the Court ORDERS: 1. The Findings and Recommendations filed on February 18, 2025 (Doc. 13) are ADOPTED in full. 2. Within 30 days from the date of service of this order, Plaintiff SHALL pay in full the $405.00 filing fee if he wishes to proceed with his action. Plaintiff is advised that failure to pay the required filing fee as ordered will result in the dismissal of this action without prejudice. Dated: _ March 28, 2025 Charis [Tourn TED STATES DISTRICT JUDGE