1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANTONIO LUIS WILLIAMS, Case No. 1:21-cv-01760-JLT (PC)

12 Plaintiff, FINDINGS AND RECOMMENDATIONS

TO DENY PLAINTIFF’S MOTION TO

13 v. PROCEED IN FORMA PAUPERIS AND

DISMISS THE CASE WITHOUT

14 RAMADAN, et al., PREJUDICE (Doc. 2) 15 Defendants. 14-DAY DEADLINE 16 Clerk of Court to Assign a District Judge 17 18 Plaintiff has filed an application to proceed in forma pauperis pursuant to 28 U.S.C. § 19 1915. (Doc. 2.) Because Plaintiff has three “strikes” under section 1915(g) and fails to show that 20 he is in imminent danger of serious physical injury, the Court recommends that Plaintiff’s motion 21 be DENIED. 22 I. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915 23 28 U.S.C. § 1915 governs proceedings in forma pauperis (“IFP”). The statute provides: 24 In no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, 25 brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which 26 relief may be granted, unless the prisoner is under imminent danger of serious 27 physical injury. 28 U.S.C. § 1915(g). This section is commonly referred to as the “three strikes” provision. 1 Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005) (“King”). “Pursuant to § 1915(g), a 2 prisoner with three strikes or more cannot proceed IFP.” Id.; see also Andrews v. Cervantes, 493 3 F.3d 1047, 1052 (9th Cir. 2007) (“Cervantes”) (holding that “[p]risoners who have repeatedly 4 brought unsuccessful suits may entirely be barred from IFP status under the three strikes rule”). 5 The objective of the Prison Litigation Reform Act (“PLRA”) is to further “the congressional goal 6 of reducing frivolous prisoner litigation in federal court.” Tierney v. Kupers, 128 F.3d 1310, 1312 7 (9th Cir. 1997). 8 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which 9 were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” 10 King, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court styles such 11 dismissal as a denial of the prisoner’s application to file the action without prepayment of the 12 full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). Once a prisoner has 13 accumulated three strikes, he is prohibited by section 1915(g) from pursuing any other IFP 14 action in federal court unless he can show he is facing “imminent danger of serious physical 15 injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1051-52 (noting § 1915(g)’s exception 16 for IFP complaints which “make[] a plausible allegation that the prisoner faced ‘imminent 17 danger of serious physical injury’ at the time of filing”). The danger he alleges to face must be 18 real, proximate, and/or ongoing. Cervantes, 493 F.3d at 1055; see also Herbaugh v. San Diego 19 Sheriff's Dep’t, No. 3:18-cv-01899-JLS-NLS, 2018 WL 5024802, at *2 (S.D. Cal. Oct. 17, 20 2018) (citing Blackman v. Mjening, 1:16-cv-01421-LJO-GSA-PC, 2016 WL 5815905, at *1 21 (E.D. Cal. Oct. 4, 2016) (“Imminent danger of serious physical injury must be a real, present 22 threat, not merely speculative or hypothetical.”)). “[V]ague and utterly conclusory assertions” of 23 imminent danger are insufficient. Herbaugh, 2018 WL 5024802, at *2 (quoting White v. 24 Colorado, 157 F.3d 1226, 1231–32 (10th Cir. 1998)). 25 When applying 28 U.S.C. § 1915(g), the court must evaluate the order dismissing an 26 action and other relevant information before determining that the action “was dismissed because 27 it was frivolous, malicious or failed to state a claim.” King, 398 F.3d at 1121. Not all dismissed 1 Upon a finding that the plaintiff is barred by the three strikes provision of 28 U.S.C. § 2 1915(g), the proper procedure is to dismiss the case without prejudice because the filing fee is 3 required when the action is initiated. Campbell v. Vance, No. CIV S-05-1163 RRB, 2005 WL 4 3288400, at *1 (E.D. Cal. Nov. 30, 2005) (citing Dupree v. Palmer, 284 F.3d 1234, 1236 (11th 5 Cir. 2002)). A plaintiff may still pursue his claims if he pays the civil and administrative filing 6 fees required by 28 U.S.C. § 1914(a). 7 II. DISCUSSION 8 The Court may take judicial notice of court records. United States v. Wilson, 631 F.2d 9 118, 119 (9th Cir. 1980). Here, the Court takes judicial notice of three of Plaintiff’s prior lawsuits 10 that were dismissed on the grounds that they failed to state a claim: 11 (1) Williams v. Wunderlich, Case No. 06-cv-1097 OWW DLB (E.D. Cal. Oct. 5, 2006) 12 (order adopting report and recommendation dismissing complaint without leave to 13 amend for failure to state a claim); 14 (2) Williams v. Hagar, Case No. 04-CV-2543 CW (PR) (N.D. Cal. Nov. 10, 2004) 15 (dismissed for failure to state a claim); and 16 (3) Williams v. McGrath, Case No. 04-CV-0782-CW (PR) (N.D. Cal. June 25, 2004) 17 (dismissed for failure to state a claim).1 18 Each of these cases was dismissed prior to the commencement of the current action on December 19 13, 2021. Plaintiff is therefore subject to the section 1915(g) bar, and he is precluded from 20 proceeding IFP in this action unless, at the time he filed his complaint, he was under imminent 21 danger of serious physical injury. See Cervantes, 493 F.3d at 1052–53. 22 The Court has reviewed Plaintiff’s complaint, (Doc. 1), and finds that Plaintiff’s 23 allegations do not meet the imminent danger exception. In the complaint, Plaintiff’s request for 24 relief includes a request to “process complaint under imminent harms, dangers, in forma pauperis 25 application.” (Doc. 1 at 10.) Beyond this, Plaintiff makes no references to dangers or harms that 26

27 1 See also Williams v. Ramey, No. 17-CV-06259 LHK (PR), 2018 WL 10455691, at *1 (N.D. Cal. Mar. 28, 2018); Williams v. Carmona, No. 17-CV-06261 LHK (PR), 2018 WL 10455690, at *1 (N.D. Cal. Mar. 28, 2018); Williams v. Ashcroft, No. C 09-05799 CW PR, 2010 WL 329958, at *2 (N.D. Cal. Jan. 20, 2010). In each of these cases, the 1 he faces imminently. Plaintiff’s allegations and claims raised in the complaint concern the 2 discontinuation of pain medication and failure to schedule a twenty-one-day, post-surgical follow 3 up appointment. These allegations, even if true, do not show that Plaintiff is in imminent danger 4 of serious physical injury. See Cervantes, 493 F.3d 1055. Accordingly, Plaintiff is precluded from 5 proceeding in forma pauperis in this action. 6 III. CONCLUSION 7 Based on the foregoing, the Court RECOMMENDS that: 8 1. Plaintiff’s motion to proceed in forma pauperis, (Doc. 2), be DENIED; and 9 2. This action be DISMISSED without prejudice to refiling upon prepayment of the 10 filing fee. 11 The Clerk of Court is DIRECTED to randomly assign a United States District Judge for 12 consideration of these Findings and Recommendations. 13 These Findings and Recommendations will be submitted to the United States District 14 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 15 of the date of service of these Findings and Recommendations, Plaintiff may file written 16 objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s 17 Findings and Recommendations.” Plaintiff’s failure to file objections within the specified time 18 may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 19 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 20

IT IS SO ORDERED.

21

22 Dated: December 14, 2021 _ /s/ Jennifer L. Thurston

CHIEF UNITED STATES MAGISTRATE JUDGE

23

24 25 26 27