(PC) Ruiz v. Mendez

7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA ROGELIO MAY RUIZ, Case No. 2:21-cv-00860-KJM-JDP (PC) 11 Plaintiff, FINDINGS AND RECOMMENDATIONS THAT PLAINTIFF’S APPLICATION TO 12 v. PROCEED IN FORMA PAUPERIS BE DENIED BASED ON HIS STATUS AS A JUDGE JOHN A. MENDEZ, et al., “THREE-STRIKER” 14 Defendants. ECF No. 3 15 FOURTEEN DAY DEADLINE 17 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. 3. 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: 23 (1) Ruiz v. Curry, E.D. Cal., No. 1:17-cv-1454-DAD-SAB (failure to state a claim); 24 (2) Ruiz v. Curry, No. 19-16456, 2019 U.S. App. LEXIS 35092 (9th Cir. 2019) (appeal dismissed as frivolous);1 26 (3) Ruiz v. McGuire, S.D. Cal. No. 3:16-cv-0388-AJB-BLM (dismissed with leave to This appeal challenged the dismissal of Ruiz v. Curry, E.D. Cal. No. 1:17-cv-1407- DAD-SKO, not the case identified above as plaintiff’s first strike.

1 amend for failure to state a claim, case dismissed on May 9, 2016, for failure to file an amended | complaint). Chief Judge Mueller, who is assigned to this case, has previously adopted || recommendations denying plaintiff permission to proceed in forma pauperis based on the | foregoing strikes. See Ruiz v. Woodfill, E.D. Cal. No. 2:20-cv-0205-KJM-AC at ECF Nos. 4 & 8.

5 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.

7 Accordingly, it is RECOMMENDED that plaintiff's motion to proceed in forma pauperis, | ECF No. 3, be DENIED and that he be directed to tender the filing fee within thirty days of any | order adopting these recommendations.

10 I submit these findings and recommendations to the district judge under 28 U.S.C. | § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, | Eastern District of California. Plaintiff may, within 14 days of the service of the findings and | recommendations, file written objections to the findings and recommendations with the court.

14 | Such objections should be captioned “Objections to Magistrate Judge’s Findings and | Recommendations.” The district judge will review the findings and recommendations under 28 | U.S.C. § 636(b)(1)(C). Failure to file objections within the specified time may result in the | waiver of rights on appeal. See Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014).

19 IT IS SO ORDERED.

20 ( q oy — Dated: _ September 29, 2021 21 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE