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6 UNITED STATES DISTRICT COURT

7 EASTERN DISTRICT OF CALIFORNIA

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9 ROGELIO MAY RUIZ, Case No. 1:20-cv-00561-EPG (PC)

10 Plaintiff, FINDINGS AND RECOMMENDATIONS,

RECOMMENDING THAT PLAINTIFF’S

11 v. APPLICATION TO PROCEED IN

FORMA PAUPERIS BE DENIED AND

12 A. LEYVAS, et al., THAT PLAINTIFF BE REQUIRED TO

PAY THE $400.00 FILING FEE IN FULL

13 Defendants. (ECF No. 2) 14

OBJECTIONS, IF ANY, DUE WITHIN

15 TWENTY-ONE (21) DAYS

16 ORDER DIRECTING CLERK TO

ASSIGN DISTRICT JUDGE

17 18 I. BACKGROUND 19 Rogelio May Ruiz (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights 20 action. Plaintiff filed the complaint commencing this action on April 16, 2020. (ECF No. 1). 21 On that same day Plaintiff filed an application to proceed in forma pauperis. (ECF No. 2). 22 As the Court finds that Plaintiff had at least “three strikes” prior to filing the action and 23 that Plaintiff was not in imminent danger of serious physical injury at the time he filed the 24 action, the Court will recommend that Plaintiff’s application to proceed in forma pauperis be 25 denied and that Plaintiff be required to pay the $400 filing fee in full if he wants to proceed 26 with the action. 27 /// 28 /// 1 II. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915(g) 2 28 U.S.C. § 1915 governs proceedings in forma pauperis. Section 1915(g) provides 3 that “[i]n no event shall a prisoner bring a civil action … under this section if the prisoner has, 4 on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action 5 or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, 6 malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is 7 under imminent danger of serious physical injury.” 8 In determining whether a case counts as a “strike,” “the reviewing court looks to the 9 dismissing court's action and the reasons underlying it…. This means that the procedural 10 mechanism or Rule by which the dismissal is accomplished, while informative, is not 11 dispositive.” Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013) (internal citation omitted). 12 See also O'Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008) (quoting Yourish v. Cal. 13 Amplifier, 191 F.3d 983, 986–87 (9th Cir. 1999) (alteration in original) (“no ‘particular 14 formalities are necessary for an order that serves as the basis of [an involuntary] dismissal.’”).1 15 III. PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS 16 a. Strikes 17 Plaintiff initiated this action on April 16, 2020. (ECF No. 1). The Court finds that, 18 prior to this date, Plaintiff had at least four cases dismissed that count as “strikes.” The Court 19 takes judicial notice of: 20 1. Ruiz v. McGuire, S.D. Cal. No. 3:16-cv-0388 AJB BLM (complaint dismissed 21 with leave to amend for failure to state a claim, case dismissed on May 9, 2016, 22 for failure to file an amended complaint); 23 2. Ruiz v. Curry, E.D. Cal. No. 1:17-cv-1454 DAD SAB (case dismissed for failure 24 to state a claim on May 30, 2018); 25 26

27 1 If an application to proceed in forma pauperis is denied as frivolous by an appellate court, the case 28 counts as a “strike” even if the appeal is not dismissed until later when the plaintiff fails to pay the filing fee. Richey v. Dahne, 807 F.3d 1202, 1208 (9th Cir. 2015). 1 3. Ruiz v. Curry, E.D. Cal. No. 1:17-cv-1407-DAD-SKO (case dismissed for 2 failure to state a claim on February 25, 2019); and 3 4. Ruiz v. Curry, 9th Cir. No. 19-16456 (appeal of Ruiz v. Curry, E.D. Cal. No. 4 1:17-cv-1407, dismissed as frivolous on November 22, 2019). 5 b. Imminent Danger 6 As Plaintiff had at least “three strikes” prior to filing this action, Plaintiff is precluded 7 from proceeding in forma pauperis unless Plaintiff was, at the time the complaint was filed, in 8 imminent danger of serious physical injury. The availability of the imminent danger exception 9 “turns on the conditions a prisoner faced at the time the complaint was filed, not at some earlier 10 or later time.” Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). “Imminent danger 11 of serious physical injury must be a real, present threat, not merely speculative or 12 hypothetical.” Blackman v. Mjening, 2016 WL 5815905, at *1 (E.D. Cal. Oct. 4, 2016). To 13 meet his burden under § 1915(g), Plaintiff must provide “specific fact allegations of ongoing 14 serious physical injury, or a pattern of misconduct evidencing the likelihood of imminent 15 serious physical injury.” Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). “[V]ague 16 and utterly conclusory assertions” of imminent danger are insufficient. White v. Colorado, 157 17 F.3d 1226, 1231–32 (10th Cir. 1998). See also Martin, 319 F.3d at 1050 (“[C]onclusory 18 assertions” are “insufficient to invoke the exception to § 1915(g)….”). The “imminent danger” 19 exception is available “for genuine emergencies,” where “time is pressing” and “a threat … is 20 real and proximate.” Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). 21 Additionally, “the complaint of a three-strikes litigant must reveal a nexus between the 22 imminent danger it alleges and the claims it asserts, in order for the litigant to qualify for the 23 ‘imminent danger’ exception of § 1915(g). In deciding whether such a nexus exists, we will 24 consider (1) whether the imminent danger of serious physical injury that a three-strikes litigant 25 alleges is fairly traceable to unlawful conduct asserted in the complaint and (2) whether a 26 favorable judicial outcome would redress that injury. The three-strikes litigant must meet both 27 requirements in order to proceed [in forma pauperis].” Stine v. Fed. Bureau of Prisons, 2015 28 1 WL 5255377, at *3 (E.D. Cal. Sept. 9, 2015) (quoting Pettus v. Morgenthau, 554 F.3d 293, 2 298–99 (2d Cir. 2009)). 3 Because Plaintiff is pro se, in making the imminent danger determination the Court 4 must liberally construe Plaintiff’s allegations. Andrews, 493 F.3d at 1055 (9th Cir. 2007). 5 Nothing in Plaintiff’s complaint suggests that Plaintiff is in imminent danger of serious 6 physical injury. Plaintiff alleges that several times, Defendants rejected or canceled 7 complaints, or appeals of complaints, Plaintiff made within the prison system. (ECF No. 1, pp. 8 3-5). However, there is no indication that Plaintiff is in imminent danger of serious physical 9 injury due to Defendants rejecting his appeal. 10 As Plaintiff is a “three-striker” and does not appear to have been in imminent danger 11 when he filed this action, the Court will recommend that Plaintiff’s application to proceed in 12 forma pauperis be denied and that Plaintiff be directed to pay the $400.00 filing fee in full if he 13 wants to proceed with this action. 14 IV. CONCLUSION AND RECOMMENDATIONS 15 The Court finds that under § 1915(g) Plaintiff may not proceed in forma pauperis in this 16 action. 17 Accordingly, it is HEREBY RECOMMENDED that: 18 1. Pursuant to 28 U.S.C. § 1915(g), Plaintiff=s application to proceed in forma 19 pauperis (ECF No. 2) be DENIED; and 20 2. Plaintiff be directed to pay the $400.00 filing fee in full if he wants to proceed with 21 this action. 22 These findings and recommendations will be submitted to the United States district 23 judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 24 twenty-one (21) days after being served with these findings and recommendations, Plaintiff 25 may file written objections with the Court. The document should be captioned “Objections to 26 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 27 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 28 wOoe 4:2 □□ □□ YEAR SOMO OP ete AY VI

1 || Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 2 |) (9th Cir. 1991)). 3 Additionally, IT IS ORDERED that the Clerk of Court is directed to assign a district 4 || judge to this case. 5

IT IS SO ORDERED.

Dated: _ April 21, 2020 [Je hey g UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28