Youngblood v. Overley

Full title: JESSE L. YOUNGBLOOD, Plaintiff, v. D. OVERLEY, Defendant.

Court: UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Date published: Mar 1, 2018

No. 1:17-cv-01598-DAD-BAM (E.D. Cal. Mar. 1, 2018)

Opinion

No. 1:17-cv-01598-DAD-BAM

03-01-2018

JESSE L. YOUNGBLOOD, Plaintiff, v. D. OVERLEY, Defendant.

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DENYING MOTIONS TO PROCEED IN FORMA PAUPERIS (Doc. Nos. 2, 4, 8)

Plaintiff Jesse L. Youngblood is a state prisoner proceeding pro se in this civil rights action brought pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

On December 1, 2017, plaintiff filed a motion to proceed in forma pauperis. On December 6, 2017, the assigned magistrate judge issued findings and recommendations, recommending that plaintiff's motion to proceed in forma pauperis be denied pursuant to 28 U.S.C. § 1915(g). (Doc. No.4.) The findings and recommendations were served on plaintiff and contained notice that objections thereto were due within thirty days. (Id. at 2-3.) Rather than filing objections, on December 18, 2017, plaintiff filed a notice of interlocutory appeal. (Doc. No. 5.) On January 5, 2018, plaintiff filed a second motion to proceed in forma pauperis. (Doc. No. 8.)

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis.¹

1 As noted, plaintiff filed a notice of appeal following the issuance of the findings and recommendations. (Doc. No. 5.) However, a magistrate judge's findings and recommendations are not an appealable order. See Serine v. Peterson, 989 F.2d 371, 372-73 (9th Cir. 1993). The Ninth Circuit therefore issued an order holding that it lacked jurisdiction over plaintiff's appeal and would not allow it to proceed. (Doc. No. 9.) --------

Accordingly,

1. The findings and recommendations issued on December 5, 2017 (Doc. No. 4) are adopted in full;

2. Plaintiff's motions to proceed in forma pauperis (Doc. Nos. 2, 8) are denied; and

3. Plaintiff is directed to pay the $400.00 filing fee within twenty-one (21) days of service of this order. If plaintiff fails to pay the full filing fee as required within the time specified in this order, this action will be dismissed.

IT IS SO ORDERED.

Dated: March 1 , 2018

/s/_________

UNITED STATES DISTRICT JUDGE