(PC) Ruiz v. Johnston

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA ROGELIO MAY RUIZ, No. 2:19-cv-2423-WBS-EFB P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS S. JOHNSTON, et al., 15 Defendants.

17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. He seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a). For the reasons stated below, the court finds that plaintiff has not demonstrated he is eligible to proceed in forma pauperis.

21 A prisoner may not proceed in forma pauperis: 22 if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was 23 dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of 24 serious physical injury.

26 28 U.S.C. § 1915(g). Court records reflect that on at least three prior occasions, plaintiff has brought actions while incarcerated that were dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted. See (1) Ruiz v. McGuire, No. 3:16-cv-0388-AJB- | BLM (S.D. Cal.), ECF No. 6 (May 9, 2016 order dismissing action after plaintiff failed to submit | an amended complaint within allotted time following dismissal of complaint for failure to state a || claim); (2) Ruiz v. Curry, No. 1:17-cv-1454-DAD-SAB (E.D. Cal.), ECF No. 19 (May 30, 2018 | order dismissing action for failure to state a claim upon which relief could be granted); and (3) || Ruiz v. Curry, No. 19-16456 (9th Cir.) (November 22, 2019 order dismissing appeal as frivolous).

6 The section 1915(g) exception applies if the complaint makes a plausible allegation that | the prisoner faced “imminent danger of serious physical injury” at the time of filing. 28 U.S.C. | § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). In this case, plaintiff | alleges that proceedings related to a rules violation hearing regarding an incident that occurred on | June 4, 2019 were unfair. See ECF No. 1. These allegations fail to demonstrate that plaintiff was || under an imminent danger of serious physical injury when he filed this action. Plaintiff’ □ | application for leave to proceed in forma pauperis must therefore be denied pursuant to § 1915(g).

13 | Plaintiff must submit the appropriate filing fee in order to proceed with this action.

14 Accordingly, IT IS HEREBY RECOMMENDED that: 15 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 2) be denied; and 16 2. Plaintiff be ordered to pay the $400 filing fee within fourteen days from the date of any || order adopting these findings and recommendations and be warned that failure to do so will result || in the dismissal of this action.

19 These findings and recommendations are submitted to the United States District Judge || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days | after being served with these findings and recommendations, any party may file written || objections with the court and serve a copy on all parties. Such a document should be captioned || “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections | within the specified time may waive the right to appeal the District Court’s order. Turner v. || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991).

26 || Dated: April 7, 2020. tid, PDEA EDMUND F. BRENNAN 28 UNITED STATES MAGISTRATE JUDGE