(PC) Ruiz v. Ehlers

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

ROGELIO MAY RUIZ, Case No. 2:21-cv-00146-JAM-JDP (PC) Plaintiff, ORDER TO SHOW CAUSE WHY

PLAINTIFF’S APPLICATION TO v. PROCEED IN FORMA PAUPERIS

SHOULDN’T BE DENIED BECAUSE OF

R. EHLERS, HIS STATUS AS A “THREE-STRIKER”

Defendant. THIRTY-DAY DEADLINE

Plaintiff Rogelio May Ruiz is a state prisoner proceeding without counsel in this civil rights action brought under 42 U.S.C. § 1983. He has filed an application to proceed in forma pauperis. ECF No. 2. No prisoner may proceed in forma pauperis in a civil action if they have previously had three actions dismissed as frivolous, malicious, or for failure to state a claim. 28 21 U.S.C. § 1915(g). Plaintiff has had three cases dismissed for failure to state a claim or as frivolous: (1) Ruiz v. Curry, No. 1:17-cv-1407-DAD-SKO at ECF No. 35 (failure to state a claim); (2) Ruiz v. Curry, No. 1:17-cv-1454-DAD-SAB at ECF No. 19 (failure to state a claim); (3) Ruiz v. Curry, No. 19-16456, 2019 U.S. App. LEXIS 35092 (9th Cir. 2019) (appeal dismissed as frivolous).

Plaintiff would still be entitled to proceed in forma pauperis if his complaint alleged that he is in imminent danger of serious physical injury. 28 U.S.C. § 1915(g). It does not. Plaintiff names one defendant, a correctional officer named R. Ehlers. ECF No. 1. Plaintiff alleges that, on October 21, 2020, Ehlers violated his rights by overtightening his restraints. 7d. at 3. Plaintiff also claims Ehlers retaliated against him for filing grievances by forcing him to walk while injured. Jd. These allegations, grounded entirely in the past, do not establish that plaintiff is in imminent danger of serious physical injury.

Within thirty days, plaintiff should respond to this order and show why, in spite of his “three-striker” status, he should be allowed to proceed in forma pauperis. Alternatively, he may discharge this order by submitting the 402 dollar filing fee. If plaintiff's response does not adequately justify being allowed to proceed in forma pauperis, I will recommend that his application be denied.

IT IS SO ORDERED. ( 4 ie — Dated: _ March 15, 2021

JEREMY D. PETERSON

UNITED STATES MAGISTRATE JUDGE