(PC) Kelly v. Newsom

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES CARL KELLY, Case No. 1:25-cv-00154 JLT EPG (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DIRECTING 13 v. PLAINTIFF TO PAY THE FILING FEE WITHIN 30 DAYS 14 GAVIN NEWSOM, et al., (Doc. 13) 15 Defendants. 16 17 James Kelly, confined at Kern Valley State Prison, filed this action in which he alleges 18 that as he moves around different prisons, doctors take away his medical equipment—wheelchair, 19 walker, cane—thus violating his civil rights. (Doc. 1.) Plaintiff failed to either pay the filing fee 20 or file a motion to proceed in forma pauperis. In reviewing Plaintiff’s litigation history, the 21 magistrate judge identified four actions that qualified as strikes under 28 U.S.C. § 1915(g). (Doc. 22 13 at 2–3.) In addition, the magistrate judge found “Plaintiff has failed to demonstrate that he 23 was in imminent danger of physical injury when he filed the complaint,” noting Plaintiff reported 24 his cane was returned prior to the filing of the complaint. (Id. at 4.) The magistrate judge found 25 the imminent danger exception to Section 1915 does not apply and filing a motion to proceed in 26 forma pauperis would be futile. (Id. at 4.) Thus, the magistrate judge recommended that the 27 Court require Plaintiff to pay the filing fee in full. (Id. at 5.) 28 The Court served the Findings and Recommendations on Plaintiff and notified him that 1 | any objections were due within 30 days. (Doc. 13 at 5.) The Court advised Plaintiff the “failure 2 | to file objections within the specified time may result in the waiver of rights on appeal.” (d., 3 | citing Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014).) Plaintiff did not file any 4 | objections and the time to do so has passed. 5 According to 28 U.S.C. § 636(b)(1), this Court performed a de novo review of this case. 6 | Having carefully reviewed the matter, the Court concludes the Findings and Recommendations 7 | are supported by the record and proper analysis. Thus, the Court ORDERS: 8 1. The Findings and Recommendations filed on February 18, 2025 (Doc. 13) are 9 ADOPTED in full. 10 2. Within 30 days from the date of service of this order, Plaintiff SHALL pay in full 11 the $405.00 filing fee if he wishes to proceed with his action. 12 Plaintiff is advised that failure to pay the required filing fee as ordered will result in 13 the dismissal of this action without prejudice. 14 15 IT IS SO ORDERED. 6 Dated: _ March 28, 2025 Charis [Tourn TED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28