1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SHARROD MOTEN, No. 1:25-cv-00821 GSA (PC) 12 Plaintiff, ORDER DIRECTING PLAINTIFF TO SHOW

CAUSE WHY HIS IN FORMA PAUPERIS

13 v. APPLICATION SHOULD NOT BE DENIED PURSUANT TO 28 U.S.C. § 1915(g) 14 COUNTY OF KERN, (ECF No. 2, 18) 15 Defendant.

AS AN ALTERNATIVE TO FILING THE

16 SHOWING OF CAUSE PLAINTIFF MAY

EITHER:

17 (1) PAY THE FILING FEE IN FULL, OR 18 (2) VOLUNTARILY DISMISS THIS 19 MATTER 20 (See Fed. R. Civ. P. 41(a)(1)(A)(i)) 21 PLAINTIFF’S SELECTION OF ONE OF

THESE THREE CHOICES DUE IN

22 FOURTEEN DAYS 23 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and 24 has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. ECF Nos. 2, 25 18). The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 26 636(b)(1)(B) and Local Rule 302. 27

28 1 For the reasons stated below, Plaintiff will be ordered to show cause why his application 2 to proceed in forma pauperis should not be denied pursuant to 28 U.S.C. § 1915(g) and he be 3 required to pay the filing fee in full. Instead of filing the showing of cause, Plaintiff may also 4 either pay the filing fee in full or voluntarily dismiss this matter. Plaintiff will be given fourteen 5 days to take one of these three courses of action. 6 I. IN FORMA PAUPERIS STATUS 7 “[In forma pauperis] status is not a constitutional right.” Rodriguez v. Cook, 169 F.3d 8 1176, 1180 (9th Cir. 1999) (brackets added); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) 9 (“To proceed in forma pauperis is a privilege not a right.”). An inmate’s in forma pauperis status 10 may be revoked at any time if the court, either sua sponte or on a motion, determines that the 11 status was improvidently granted. Keeton v. Marshall, No. CV 17-01213 FMO (KS), 2018 WL 12 4381543, at *6 (C.D. Cal. June 8, 2018) (citation omitted) (italics added); Owens v. Matthews, 13 No. CV 16-07755 JFW (KS), 2017 WL 603183, at *2 (C.D. Cal. Jan. 6, 2017) (stating same). 14 The grant or refusal of permission to proceed in forma pauperis is left to the sound discretion of 15 the district court. Smart, 347 F.2d 114, 116 (9th Cir. 1963) (citing Weller v. Dickson, 314 F.2d 16 598 (9th Cir. 1963)). The latitude given a district court in such matters is especially broad in civil 17 actions by prisoners against their wardens and other officials. Smart, 347 F.2d at 116 (footnote 18 citation omitted); Shobe v. People of State of California, 362 F.2d 545, 546 (9th Cir. 1966) (citing 19 Smart). 20 II. THREE STRIKES RULE: 28 U.S.C. § 1915(g) 21 28 U.S.C. § 1915(g) states: 22 In no event shall a prisoner bring a civil action or appeal a judgment in a civil action 23 or proceeding under this section if the prisoner has, on 3 or more prior occasions, 24 while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, 25 or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 26

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28 1 “It is well-settled that, in determining a [Section] 1915(g) ‘strike,’ the reviewing court 2 looks to the dismissing court’s action and the reasons underlying it.” Knapp v. Hogan, 738 F.3d 3 1106, 1109 (9th Cir. 2013) (brackets added) (emphasis added) (citation omitted). “[Section] 4 1915(g) should be used to deny a prisoner’s in forma pauperis status only when, after careful 5 evaluation of the order dismissing an action, and other relevant information, the district court 6 determines that the action was dismissed because it was frivolous, malicious or failed to state a 7 claim.” Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2006) (brackets added). “[W]hen a 8 district court disposes of an in forma pauperis complaint ‘on the grounds that [the claim] is 9 frivolous, malicious, or fails to state a claim upon which relief may be granted,’ such a complaint 10 is ‘dismissed’ for purposes of § 1915(g) even if the district court styles such dismissal as denial of 11 the prisoner’s application to file the action without prepayment of the full filing fee.” O’Neal v. 12 Price, 531 F.3d 1146, 1153 (9th Cir. 2008) (second alteration in original). Dismissal also counts 13 as a strike under § 1915(g) “when (1) a district court dismisses a complaint on the ground that it 14 fails to state a claim, (2) the court grants leave to amend, and (3) the plaintiff then fails to file an 15 amended complaint” regardless of whether the case was dismissed with or without prejudice. 16 Harris v. Mangum, 863 F.3d 1133, 1142-43 (9th Cir. 2017). 17 An inmate who has accrued three strikes is precluded from proceeding in forma pauperis 18 unless he is “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). To satisfy 19 the exception, the plaintiff must have alleged facts that demonstrate that he was “under imminent 20 danger of serious physical injury” at the time of filing the complaint. Andrews v. Cervantes, 493 21 F.3d 1047, 1053 (9th Cir. 2007) (“[I]t is the circumstances at the time of the filing of the 22 complaint that matters for purposes of the ‘imminent danger’ exception to § 1915(g).”); see also 23 Abdul-Akbar v. McKelvie, 239 F.3d 307, 312-14 (3rd Cir. 2001); Medberry v. Butler, 185 F.3d 24 1189, 1192-93 (11th Cir. 1999); Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998); Banos v. 25 O’Guin, 144 F.3d 883, 885 (5th Cir. 1998); Lipsey v. Allison, No. 1:21-cv-00912 GSA, 2021 WL 26 2390424, at *3 (E.D. Cal. June 11, 2021) (“The availability of the imminent danger exception 27 turns on the conditions a prisoner faced at the time the complaint was filed, not at some earlier or 28 later time.”). 1 The danger faced by a prisoner at the time of filing must be imminent or ongoing. See, 2 e.g., Medberry, 185 F.3d at 1193 (finding plaintiff was not in either imminent or ongoing danger 3 and denying him ability to proceed in forma pauperis as three strikes litigant). “Imminent danger 4 of serious physical injury must be a real and present threat, not merely speculative or 5 hypothetical.” Lipsey, 2012 WL 2390424, at *3; Blackman v. Mjening, No. 1:16-cv-01421 LJO 6 GSA, 2016 WL 5815905, at *1 (E.D. Cal. Oct. 4, 2016). In addition, “the imminent danger 7 exception to the [Prison Litigation Reform Act’s] three strikes provision requires a nexus between 8 the alleged imminent danger and the violations of law alleged in the complaint.” Ray v. Lara, 31 9 F.4th 692, 695 (9th Cir. 2022) (brackets added). 10 III. PLAINTIFF'S THREE STRIKES STATUS 11 A review of court records reveals that at least three cases brought by Plaintiff qualify as 12 strikes under Section 1915(g). The Court takes judicial notice of the following lawsuits1 13 previously filed by Plaintiff and dismissed on grounds listed in Section 1915(g) prior to him 14 bringing the currently pending Cisneros and Pheiffer cases: 15 • Moten v. Calderon, No. 2:23-cv-02595 DOC SP (C.D. Cal. May 31, 2023) (denial of 16 request to proceed in forma pauperis due to failure to state a claim);2 17 • Moten v. Abrams, No. 2:23-cv-06359 GW (C.D. Cal. Sept. 6, 2023) (denial of request 18 to proceed in forma pauperis due to failure to state a claim), and 19 • Moten v. Phiefer, No. 2:23-cv-06355 DOC SP (C.D. Cal. Sept. 29, 2023) (denial of 20 request to proceed in forma pauperis due to failure to state a claim).3

21 1 The court “may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.” United States ex 22 rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) 23 (citation and internal quotation marks omitted) (collecting cases); Fed. R. Evid. 201(b)(2) (court may take judicial notice of facts that are capable of accurate determination by sources whose 24 accuracy cannot reasonably be questioned). 2 See O’Neil v. Price, 531 F.3d 1146, 1152 (9th Cir. 2008) (stating denial of in forma pauperis 25 application on ground that complaint is frivolous counts as dismissal for purposes of Section 1915(g)); El Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (citing O’Neil, 531 F.3d at 26 1153). 27 3 Although these three cases are sufficient to establish that Plaintiff had enough strikes to require that he pay the filing fee in full prior to him bringing Cisneros and Pheiffer, Plaintiff has another 28 recently adjudicated case that is also a strike: Moten v. Abrams, No. 23-2493 (9th Cir. Jan. 17, 1 IV. DISCUSSION 2 A. Case Brought After Three Strikes Accrued 3 The instant matter was docketed on February 16, 2025. See ECF No. 1. More 4 importantly, Plaintiff signed the complaint on February 13, 2025. Id. at 10 (2/13/25 signature 5 date on complaint). February 13, 2025, is after the three strike cases identified above had been 6 fully adjudicated. See ECF No. 1 at 10. 7 Because the above-referenced strike cases were dismissed on Section 1915(g) grounds 8 before the instant matter was brought before the Court, as a three strikes litigant, Plaintiff was 9 required to pay the filing fee in full for this matter prior to proceeding in it unless, at the time that 10 he brought it, he alleged an adequate showing that he was in imminent danger of serious physical 11 harm on February 13, 2025, when he filed it. See 28 U.S.C. § 1915(g) (serious physical harm 12 requirement). 13 B. No Imminent Danger Alleged in Instant Matter 14 A review of the complaint indicates that Plaintiff does not make plausible allegations that 15 he was in imminent danger of serious physical harm at the time that he filed it in in February 16 2025. See generally ECF No. 1. Plaintiff does makes general allegations of unsanitary living 17 conditions at Kern Valley State Prison (“KVSP) where he is currently incarcerated. See, e.g., 18 ECF No. 1 at 1-2 (Plaintiff alleging toilet backups in his housing unit; failure of prison officials to 19 offer showers, to inmates). He also alleges that on July 20, 2024, prison officials delayed 20 addressing the fact that the toilet in his cell had overflowed. Id. at 2. However, it appears that 21 none of the alleged violations of right that Plaintiff states occurred happened near February 13, 22 2025, the date that Plaintiff signed the complaint and presumably gave it to prison officials for 23 mailing.4 See id. Therefore, it is clear on the face of the complaint that at the time that Plaintiff 24 2024) (mandate pending) (dismissal as frivolous). See El Shaddai, 833 F.3d at 1045-46 (citation 25 omitted) (stating affirmation on appeal counts as strike if court expressly states appeal was frivolous, malicious or failed to state claim). 26 4 When a prisoner gives prison authorities a pleading to mail to the court, the court deems it 27 constructively “filed” on the date that it is signed. Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010). A court also assumes that a prisoner turns his pleading over to prison authorities 28 on the same day that he signs it. See, e.g., Porter v. Ollison, 620 F.3d 952, 955 n.2 (9th Cir. 1 filed the instant matter, he was not in any imminent danger of serious physical harm. 2 C. Plaintiff Is Required to Pay Filing Fee In Full First 3 Because Plaintiff was a three strikes litigant when he filed the instant case, and because he 4 has not demonstrated that he was in imminent danger of serious physical harm at the time he filed 5 the instant complaint, Section 1915(g) precludes him from proceeding any further with this matter 6 prior to him first paying the filing fee for it in full. See 28 U.S.C. § 1915(g). Prior to ordering 7 him to do so, Plaintiff will first be directed to show cause why he is not a three strikes litigant 8 within the meaning of Section 1915(g) and why his application to proceed in forma pauperis (see 9 ECF No. 2) should not be denied as a result. In the alternative, Plaintiff may either pay the filing 10 fee in full or voluntarily dismiss this matter. Plaintiff will be given fourteen days to take one of 11 these three courses of action. 12 V. CONCLUSION 13 Plaintiff has requested leave to proceed in forma pauperis. ECF No. 2. Prior to bringing 14 this matter before the Court Plaintiff had accumulated at least three strikes in previous cases 15 within the meaning of 28 U.S.C. § 1915(g). In addition, a review of his instant complaint 16 indicates that he has not alleged claims which demonstrate that he was in imminent danger 17 serious physical harm at the time he filed the instant complaint. See generally ECF No. 1. As a 18 result, he is required under Section 1915(g) to pay the filing fee in full in this case before 19 proceeding any further with it. 20 Prior to ordering Plaintiff to pay the filing fee in full, Plaintiff will first be ordered to show 21 cause why his in forma pauperis application should not be denied and he be required to pay the 22 filing fee in full in this case. As an alternative to filing showing of cause Plaintiff may pay the 23 filing fee in full, or he may voluntarily dismiss the matter pursuant to Federal Rule of Civil 24 Procedure 41(a)(1)(A)(i). Plaintiff will be given fourteen days to take one of these three courses 25 of action. 26 Accordingly, IT IS HEREBY ORDERED that: 27 28 1. Within fourteen days from the date of this order, Plaintiff shall SHOW CAUSE why 1 his application to proceed in forma pauperis should not be DENIED and he be required to PAY 2 the filing fee in full prior to proceeding any further in this action. See 28 U.S.C. § 1915(g). 3 2. As an ALTERNATIVE to Plaintiff file a showing of cause, Plaintiff may either: 4 a. PAY the filing fee in full, or 5 b. VOLUNTARILY DISMISS this matter. See Fed. R. Civ. P. 41(a)(1)(A)(i). 6 Plaintiff is cautioned that failure to comply with this order within the time allotted 7 may result in a recommendation that this matter be dismissed. 8 9

IT IS SO ORDERED.

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11 Dated: July 14, 2025 /s/ Gary S. Austin

UNITED STATES MAGISTRATE JUDGE

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