(PC) Ruiz v. Mendez

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

ROGELIO MAY RUIZ, Case No. 2:21-cv-00860-KJM-JDP (PC) Plaintiff, FINDINGS AND RECOMMENDATIONS

THAT PLAINTIFF’S APPLICATION TO v. PROCEED IN FORMA PAUPERIS BE

DENIED BASED ON HIS STATUS AS A

JUDGE JOHN A. MENDEZ, et al., “THREE-STRIKER”

Defendants. ECF No. 3

FOURTEEN 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. 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: (1) Ruiz v. Curry, E.D. Cal., No. 1:17-cv-1454-DAD-SAB (failure to state a claim); (2) Ruiz v. Curry, No. 19-16456, 2019 U.S. App. LEXIS 35092 (9th Cir. 2019) (appeal dismissed as frivolous);1 (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. 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. 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. 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.

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. 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).

IT IS SO ORDERED. ( q oy — Dated: _ September 29, 2021

JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE