1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DEVON SAMUEL JAMES SINGLETON Case No. 1:25-cv-01756-HBK (PC)

PERKINS,

12 ORDER TO RANDOMLY ASSIGN CASE TO Plaintiff, A DISTRICT JUDGE 13 v. FINDINGS AND RECOMMENDATIONS TO 14 DENY PLAINTIFF’S MOTIONS TO DELA CRUZ, et al., PROCEED IN FORMA PAUPERIS UNDER 28 15 U.S.C. § 1915 (g)1 Defendants. 16 (Doc. Nos. 2, 7) 17 FOURTEEN-DAY OBJECTION PERIOD 18 19 Plaintiff Devon Samuel James Singleton Perkins, a state prisoner currently confined at the 20 Kern Valley State Prison (“KVSP”), operated by the California Department of Corrections and 21 Rehabilitation (“CDCR”), initiated this action by filing a pro se civil rights complaint pursuant to 22 42 U.S.C. § 1983 on December 5, 2025. (Doc. No. 1). On the same day, Plaintiff filed an 23 application to proceed in forma pauperis (“IFP”). (Doc. No. 2). Plaintiff filed a second motion to 24 proceed in forma pauperis on December 15, 2025. (Doc. No. 7). The undersigned recommends 25 the district court deny Plaintiff’s IFP motions under 28 U.S.C. § 1915(g) because Plaintiff has had 26 at least three actions or appeals that constitute strikes and the complaint does not establish that 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2025). 1 Plaintiff meets the imminent danger exception. 2 BACKGROUND 3 Plaintiff’s complaint lists the following as Defendants: A. Dela Cruz; D. Diaz; A. Najera- 4 Lopez; and B. Marsden. (Doc. No. 1 at 2). The complaint alleges an excessive force claim in 5 violation of the Eighth Amendment against all Defendants. (Id. at 3-5). 6 On July 4, 2025, Plaintiff asked to talk with the “C-Fac Sergeant” and walked past 7 Defendants Diaz and Najera-Lopez in C-yard, who “jumped” at Plaintiff. (Id. at 3-4). Plaintiff 8 jumped out of the way and continued to walk to the C-Fac-Program office. (Id.). Plaintiff asked 9 correctional officers to call the C-Fac Sergeant so he could speak with him. (Id.). Defendants 10 Diaz and Najera-Lopez refused to get the Sergeant for Plaintiff. (Id.). An alarm went off in C- 11 Fac-CI as Plaintiff was standing in front of the C-yard program office but was not stopping any 12 officer from responding to the alarm. (Id.). As Defendants Dela Cruz, Diaz, Najera-Lopez, and 13 Marsden approached Plaintiff, Plaintiff told Defendant Diaz “I’m medical, I don’t have to get 14 down. I’m not moving. You know I’m medical. Only female staff have a right to touch me. I 15 don’t cuff behind my back.” (Id. at 4). Plaintiff accused Diaz of: 16 setting [him] up to have [him] jump by both these men ‘Defendants’ (because [he’s] non-binary-black & gay) (& [he] use to run with the 17 Crips” (& [he’s] not a 2.5er). 18 (Id.). Defendant Diaz let Defendants “beat him” (Id.). Dela Cruz “push [Plaintiff] into having a 19 ‘absolutely-seizure,’” tried to “pop out Plaintiff’s upper rotator cuff” while attempting to cuff 20 him, and that “busted Plaintiff’s face open.” (Id. at 3-5). During the incident, Defendant Dela 21 Cruz was saying “beat him-beat him.” (Id. at 5). 22 Plaintiff seeks $450,000 from each Defendant for their hate crime against him and 23 $500,000 from each Defendant for false imprisonment and mental anguish. (Id. at 6). 24 MOTION TO PROCEED IFP 25 All parties instituting any civil action, suit, or proceeding in any district court of the 26 United States, except an application for writ of habeas corpus, must pay a filing fee of $405.00. 27 See 28 U.S.C. § 1914(a). An action may proceed despite a party’s failure to pay this filing fee 28 only if the party is granted leave to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 2 F.3d 1176, 1177 (9th Cir. 1999). 3 A. Applicable Three Strikes Law 4 The “Three Strikes Rule” states: In no event shall a prisoner bring a civil action or proceeding under 5 this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal 6 in the United States that was dismissed on grounds that it was frivolous, malicious, or fails to state a claim upon which relief may 7 be granted, unless the prisoner is under imminent danger of serious physical injury. 8 9 28 U.S.C. § 1915(g). As part of the Prison Litigation Reform Act, the Three Strikes Rule was 10 enacted to help curb non-meritorious prisoner litigation. See Lomax v. Ortiz-Marquez, 140 S. Ct. 11 1721, 1723 (2020) (citations omitted)). Under § 1915(g), prisoners who have repeatedly brought 12 unsuccessful suits may be barred from bringing a civil action and paying the fee on a payment 13 plan once they have had on prior occasions three or more cases dismissed as frivolous, malicious, 14 or for failure to state a claim. Id.; see also Andrews, 493 F.2d at 1052. 15 For a dismissal to count as a strike, the dismissal had to be on a “prior occasion,” meaning 16 the order dismissing the case must have been docketed before plaintiff initiated the current case. 17 See § 1915(g). The reviewing court then looks to the basis of prior dismissals. Knapp v. Hogan, 18 738 F.3d 1106, 1109 (9th Cir. 2013). A dismissal counts as a strike when the dismissal of the 19 action was for frivolity, maliciousness, failure to state a claim, or an appeal was dismissed for the 20 same reasons. Lomax, 140 S. Ct. at 1723 (citing Section 1915(g)); see also Washington v. Los 21 Angeles Cty. Sheriff’s Dep’t, 833 F.3d 1048 (9th Cir. 2016) (reviewing dismissals that count as 22 strikes); Coleman v. Tollefson, 135 S. Ct. 1759, 1761 (2015) (dismissal that is on appeal counts as 23 a strike during the pendency of the appeal); Spencer v. Barajas, 140 F.4th 1061, 1068 (9th Cir. 24 2025) (finding a voluntary dismissal under Rule 41(a)(1) was not a strike because the dismissal 25 was not “‘on the grounds that’ the case was frivolous, malicious, or failed to state a claim”). It is 26 immaterial whether the dismissal for failure to state a claim was with or without prejudice, as 27 both count as a strike under § 1915(g). Lomax, 140 S. Ct. at 1727. When a district court disposes 28 of an in forma pauperis complaint requiring the full filing fee, then such a complaint is 1 “dismissed” for purposes of §1915(g). Louis Butler O’Neal v. Price, 531 F.3d 1146, 1153 (9th 2 Cir. 2008). 3 Once a prisoner-plaintiff has accumulated three strikes, he/she may not proceed without 4 paying the full filing fee, unless “the complaint makes a plausible allegation” that the prisoner 5 “faced ‘imminent danger of serious physical injury’ at the time of filing” of the complaint. 6 Andrews, 493 F.3d at 1051-52 (addressing the imminent danger exception for the first time in the 7 Ninth Circuit). The court must construe the prisoner’s “facial allegations” liberally to determine 8 whether the allegations of physical injury are plausible. Williams v. Paramo, 775 F.3d 1182, 9 1190 (9th Cir. 2015). 10 To avail oneself of this narrow exception, “the PLRA requires a nexus between the 11 alleged imminent danger and the violations of law alleged in the prisoner’s complaint.” Ray v. 12 Lara, 31 F. 4th 692, 700-701 (9th Cir. Apr. 11, 2022) (adopting nexus test). “In deciding 13 whether such a nexus exists, we will consider (1) whether the imminent danger of serious 14 physical injury that a three-strikes litigant alleges is fairly traceable to unlawful conduct asserted 15 in the complaint and (2) whether a favorable judicial outcome would redress that injury.” Id. at 16 700 (adopting test as articulated by Second Circuit, citation omitted). The three-strikes litigant 17 must meet both requirements of the nexus test to proceed. Id. 18 Assertions of imminent danger may be rejected as overly speculative, fanciful, or 19 “conclusory or ridiculous.” Andrews, 493 F.3d at 1057, fn. 11. Similarly, “vague and utterly 20 conclusory assertions” of imminent danger are insufficient. White v. Colorado, 157 F.3d 1226, 21 1231–32 (10th Cir. 1998). Instead, the “imminent danger” exception exists “for genuine 22 emergencies,” where “time is pressing” and “a threat . . . is real and proximate.” Lewis v. 23 Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). Thus, conditions that posed imminent danger to a 24 plaintiff at some earlier times are immaterial, as are any subsequent conditions. Andrews, 493 25 F.3d at 1053; Blackman v. Mjening, 2016 WL 5815905, at *1 (E.D. Cal. Oct. 4, 2016). 26 //// 27 //// 28 //// 1 B. Plaintiff Has Three or More Qualifying Strikes 2 A review of the PACER Database2 reveals that Plaintiff has incurred at least three strikes 3 prior to filing the instant action: 4 • Singleton Perkins v. Pfeiffer et al., No. 1:21-cv-00025-DAD-SAB (E.D. Cal. Aug. 24, 5 2021) (Doc. No. 16) (dismissed for failure to prosecute/comply with a court order after 6 Plaintiff’s original complaint and first amended complaints were dismissed for failing to 7 state a claim and Plaintiff failed to file a second amended complaint);3 8 • Singleton v. Baugham et al., No. 2:18-cv-02633-TLN-DB (E.D. Cal. Oct. 26, 2021) (Doc. 9 No. 19) (dismissed for failure to prosecute/comply with a court order after Plaintiff’s 10 original complaint was dismissed for failing to state a claim and Plaintiff failed to file an 11 amended complaint); and 12 • Perkins v. Asuncion, No. 5:18-CV-02203-JVS-SP (C.D. Cal. Mar. 22, 2022) (Doc. No. 13 21) (dismissed for failure to state a claim and additionally noting claims are facially Heck 14 barred). 15 C. The Imminent Danger Exception Does Not Apply 16 Due to Plaintiff’s three-strike status, he may not proceed IFP unless the complaint 17 contains plausible allegations that Plaintiff is in imminent danger of serious physical injury on the 18 date the Complaint is filed. Andrews, 493 F.3d at 1052-53. Liberally construing the complaint, 19 the undersigned finds that it contains no plausible allegations sufficient to allege Plaintiff faced 20 imminent danger of serious physical injury at the time he filed this action. 21 The complaint alleges a claim of excessive force against Defendants that occurred on July 22 4, 2025. Plaintiff did not file this action until December 2025. There are no allegations in the 23 complaint that would indicate Plaintiff was under threat of imminent danger based on the July 4, 24

25 2 https://pacer.uscourts.gov. 3 Harris v. Mangum, 863 F.3d 1133, 1143 (9th Cir. 2017) (holding “when (1) a district court dismisses a 26 complaint on the ground that it fails to state a claim, (2) the court grants leave to amend, and (3) the 27 plaintiff then fails to file an amended complaint, the dismissal counts as a strike under § 1915(g)”).

28 1 2025, excessive force incident at the time he filed the complaint. See Driver v. Pohovich, No. 2 2:22-CV-1672 DB P, 2023 WL 2394154, at *2 (E.D. Cal. Feb. 1, 2023), report and 3 recommendation adopted, No. 2:22-CV-1672-TLN-DB, 2023 WL 8004324 (E.D. Cal. Nov. 17, 4 2023) (finding complaint filed in September alleging two excessive use of force incidents in July 5 failed to meet imminent danger exception). Without more, the allegations that Defendants used 6 excessive force against Plaintiff on a single occasion five months earlier fails to indicate the 7 existence of an ongoing threat of imminent danger. This is because the availability of the 8 imminent danger exception “turns on the conditions a prisoner faced at the time the complaint 9 was filed, not at some earlier or later time.” Andrews, 493 F.3d at 1053, 1056; see also Gonzales 10 v. Castro, No. 1:09-cv-01545-AWI-MJS, 2010 WL 2471030, at *2 (E.D. Cal. June 9, 2010) 11 (finding a single incident of excessive force by prison staff occurring three months before filing 12 of complaint insufficient to show an ongoing threat), report and recommendation adopted, 2010 13 WL 3341862 (E.D. Cal. Aug. 25, 2010); Garrett v. Pat. Horn, Warden of Kern Valley State 14 Prison, No. 1:25-cv-00128-HBK (PC), 2025 WL 868899, at *13 (E.D. Cal. Mar. 20, 2025) 15 (finding a single incident of excessive force occurring months prior to the filing of the complaint 16 failed to show imminent physical danger), report and recommendation adopted, 2025 WL 17 1151075 (E.D. Cal. April 18, 2025), appeal dismissed, 2025 WL 3205862 (9th Cir. Oct. 23, 18 2025). 19 Accordingly, it is hereby ORDERED: 20 The Clerk of Court shall randomly assign this case to a district judge for consideration of 21 these Findings and Recommendations. 22 It is further RECOMMENDED: 23 1. Plaintiff’s motions to proceed in forma pauperis (Doc. Nos. 2 & 7) be DENIED under 24 § 1915(g); and 25 2. Plaintiff be ordered to pay the $405.00 filing fee in full, absent which the Court 26 dismiss this action without prejudice. 27 NOTICE TO PARTIES 28 These Findings and Recommendations will be submitted to the United States District 1 | Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days 2 | after being served with a copy of these Findings and Recommendations, a party may file written 3 | objections with the Court. /d.; Local Rule 304(b). The document should be captioned, 4 | “Objections to Magistrate Judge’s Findings and Recommendations” and shall not exceed fifteen 5 | (15) pages. The Court will not consider exhibits attached to the Objections. To the extent a party 6 | wishes to refer to any exhibit(s), the party should reference the exhibit in the record by its 7 | CM/ECEF document and page number, when possible, or otherwise reference the exhibit with 8 || specificity. Any pages filed in excess of the fifteen (15) page limitation may be disregarded by 9 | the District Judge when reviewing these Findings and Recommendations under 28 U.S.C. 10 | § 636(b)d)(C). A party’s failure to file any objections within the specified time may result in the 11 | waiver of certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). 12 8 Dated: _ December 22, 2025 law ZA. foareh Zackte 14 HELENA M. BARCH-KUCHTA

UNITED STATES MAGISTRATE JUDGE

16 17 18 19 20 21 22 23 24 25 26 27 28