(PC) Stephen v. Montejo

Opinion

JIMMIE STEPHEN, No. 2:18-cv-1796 KJM DB P Plaintiff, v. ORDER Defendant. Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided 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 were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within fourteen days. Neither party has filed objections to these findings and recommendations. On June 12, 2020, the magistrate judge filed a separate set of findings and recommendations, which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within thirty days. Plaintiff has filed objections to these recommendations. ///// Regarding the February 3 findings and recommendations, the court presumes any findings of fact are correct. See Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo. See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (“[D]eterminations of law by the magistrate judge are reviewed de novo by both the district court and [the appellate] court . . . .”). Regarding the June 12 findings and recommendations, in accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this court has conducted a de novo review of this case. Having reviewed the file, the court finds the findings and recommendations to be supported by the record and by the proper analysis.1 Accordingly, IT IS HEREBY ORDERED that: 1. The findings and recommendations filed February 3, 2020, are adopted in full; 2. Plaintiff’s request for preliminary injunctive relief (ECF No. 53) is denied; and 3. The findings and recommendations filed June 12, 2020 are adopted in full: a. Defendant’s request for judicial notice (ECF No. 78) is granted as to plaintiff’s litigation history and denied in all other respects; b. Defendant’s motion to revoke plaintiff’s in forma pauperis status (ECF No. 77) is granted; and c. 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. DATED: November 30, 2020. 1 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.