(PC)Sandoval v. Lopez

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA JULIO SANDOVAL, Case No.: 1:23-cv-00248-SKO (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S APPLICATION TO 13 v. PROCEED IN FORMA PAUPERIS M. LOPEZ, et al., 14-DAY OBJECTION PERIOD 15 Defendants. Clerk of the Court to Assign District Judge

17 Plaintiff Julio Sandoval is proceeding pro se in this civil rights action pursuant to 42 18 U.S.C. § 1983.

19 On February 18, 2023, Plaintiff filed an Application to Proceed In Forma Pauperis by a Prisoner. (Doc. 2.) Because Plaintiff has accrued three or more “strikes” under section 28 U.S.C. § 1915 and fails to show that he is under imminent danger of serious physical injury, the Court will recommend that his motion be denied.

23 I. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915 24 28 U.S.C. § 1915 governs in forma pauperis proceedings. The statute provides that “[i]n 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, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or danger of serious physical injury.” 28 U.S.C. § 1915(g).

2 II. DISCUSSION 3 The Court takes judicial notice1 of three of Plaintiff’s prior lawsuits that were dismissed for a failure to state a claim upon which relief may be granted or for repeated violations of Fed. R. Civ. P. 8: (1) Sandoval v. Unknown, Case No. 1:12-cv-01760-SKO (E.D. Cal.) (dismissed June 5, 2013, for failure to state a claim); (2) Sandoval v. Diaz, Case No. 1:20-cv-01314-DAD-BAM (E.D. Cal.) (dismissed October 21, 2021, for failure to comply with Fed. R. Civ. P. 8); and (3) Sandoval v. Diaz, Case No. 1:20-cv-01374-DAD-EPG (E.D. Cal.) (dismissed November 22, 2021, for failure to state a claim & failure to comply with Fed. R. Civ. P. 8). See Moore v. Maricopa Cty. Sheriff’s Office, 657 F.3d 890, 893–94 (9th Cir. 2011) (dismissal for failure to state a claim is a strike); Knapp v. Hogan, 738 F.3d 1106, 1110 (9th Cir. 2013) (dismissal for repeated violations of Rule 8 is a strike). Each of these actions was dismissed prior to the commencement of the current action on February 18, 2023. Plaintiff is therefore subject to the section 1915(g) bar, and he is precluded from proceeding in forma pauperis in this action unless, at the time he filed his complaint, he was under imminent danger of serious physical injury. See Andrews v. Cervantes, 493 F.3d 1047, 1052-53 (9th Cir. 2007).

17 The Court has reviewed the complaint in this action. Plaintiff generally alleges the named defendants have been deliberately indifferent to his serious medical needs, failing to provide adequate medical care and to protect him from harm in November 2020 through April 2021, in violation of the Eighth Amendment. (See Doc. 1.)

21 The statute's imminent danger exception applies where facts indicating imminent danger appear “on the face of the complaint.” Andrews v. Cervantes, 493 F.3d at 1050; see also id. at 1055 (“exception applies if the complaint makes a plausible allegation that the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing”); see also Ibrahim v. Dist. of Columbia, 463 F.3d 3, 6 (D.C. Cir. 2006) (“In determining whether he qualifies [for the ‘imminent danger’ exception], we look to the complaint...”); Brown v. Johnson, 387 F.3d 1344, The Court may take judicial notice of court records. United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).

1 1350 (11th Cir. 2004) (“[T]he issue [under § 1915(g)] is whether [plaintiff's] complaint, as a whole, alleges imminent danger of serious physical injury”).

3 The undersigned finds that the allegations of Plaintiff’s complaint do not demonstrate an imminent danger. The actions alleged to have caused physical injury happened about two years before the filing of the complaint. Further, despite Plaintiff’s assertions that he continues to feel pain in his lungs and occasionally still has trouble breathing, an exhibit to Plaintiff’s complaint reveals that a lung x-ray performed on March 8, 2021 revealed no abnormality, that a plan of care was established, and that further medical treatment was provided. (See Doc. 1 at 17 [Reasonable Accommodation Panel (RAP) Response dated 3/18/21]). Conditions which posed imminent danger to Plaintiff at some earlier time are immaterial, Andrews, 493 F.3d at 1053, and an unhealed past injury does not equate to a threatened future injury or an ongoing injury. Id. at 1056.

13 In sum, Plaintiff's allegations fail to demonstrate that he faced imminent danger of serious physical injury at the time of filing his complaint, and Plaintiff is therefore precluded from proceeding in forma pauperis in this action.

16 III. ORDER AND RECOMMENDATIONS 17 For the reasons set forth above, the Court DIRECTS the Clerk of the Court to assign a district judge to this action and RECOMMENDS that: 19 1. Plaintiff’s motion to proceed in forma pauperis (Doc. 2) be DENIED; and, 20 2. Plaintiff be ordered to pay the $402.00 filing fee in full within 30 days.

21 These Findings and Recommendations will be submitted to the district judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of service of these Findings and Recommendations, a party may file written objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections within the specified time may result in waiver of // // rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

IT IS SO ORDERED.

5 Dated: February 23, 2023 /s/ Sheila K. Oberto .

UNITED STATES MAGISTRATE JUDGE