1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 RANDY MAESTAS, Case No. 1:23-cv-01197-EPG 11 Plaintiff, ORDER TO ASSIGN A DISTRICT JUDGE 12 v. FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF’S 13 SAMANTHA SOLORIO, APPLICATION TO PROCEED IN FORMA PAUPERIS BE DENIED AND THAT 14 Defendant. PLAINTIFF BE REQUIRED TO PAY THE $402.00 FILING FEE IN FULL IF HE WANTS 15 TO PROCEED WITH THIS ACTION 16 (ECF No. 2) 17 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN (14) DAYS 18 19 Plaintiff Randy Maestas is a state prisoner proceeding pro se in this civil rights action 20 filed under

. (ECF No. 1). On August 11, 2023, Plaintiff file an application to 21 proceed in forma pauperis in this action. (ECF No. 2). 22 Because the Court concludes that Plaintiff had at least three “strikes” prior to filing the 23 action and that Plaintiff was not in imminent danger of serious physical injury at the time he filed 24 the action, the Court will recommend that Plaintiff be required to pay the $402 filing fee in full if 25 he wants to proceed with the action. 26 I. THREE-STRIKES PROVISION OF

(g) 27 Plaintiff’s in forma pauperis application is governed by

. Pertinent here 28 is the so called “three strikes provision.” 1 In 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, 2 brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief 3 may be granted, unless the prisoner is under imminent danger of serious physical 4 injury. 5

(g). In determining whether a dismissal counts as a “strike” under § 1915(g), “the reviewing court looks to the dismissing court’s action and the reasons underlying it. . . . This 6 means that the procedural mechanism or Rule by which the dismissal is accomplished, while 7 informative, is not dispositive.” Knapp v. Hogan,

(9th Cir. 2013) (internal 8 citation omitted). The Ninth Circuit has “interpreted the final form of dismissal under the statute, 9 ‘fail[ure] to state a claim upon which relief may be granted,’ to be essentially synonymous with a 10 Federal Rule of Civil Procedure 12(b)(6) dismissal.”

(alteration in original). 11 II. ANALYSIS 12 A. Strikes 13 Plaintiff filed this action on August 11, 2023. (ECF No. 1). Upon review of Plaintiff’s 14 prior cases, the Court concludes that, prior to Plaintiff filing the instant action, Plaintiff had at 15 least three cases dismissed that count as “strikes.” 16 The Court takes judicial notice of the following three cases, each of which counts as a 17 “strike”: The first case, Maestas v. Sacramento County Jail, 2:21-cv-00665-TLN-JDP (filed April 18 14, 2021), was dismissed on September 22, 2022, after Plaintiff failed to provide sufficient 19 factual allegations to state a claim to relief that was plausible on its face despite being advised of 20 the deficiency and filing an amended complaint failing to cure the defect. (ECF Nos. 23, 25, 26); 21 see Knapp,

(“We hold that repeated and knowing violations of Federal Rule 22 of Civil Procedure 8(a)’s ‘short and plain statement’ requirement are strikes as ‘fail[ures] to state 23 a claim,’

(g), when the opportunity to correct the pleadings has been afforded and there has been no modification within a reasonable time.”). 24 The second case, Maestas v. C.S.A.T.F. Mail Room, 1:23-cv-00569-JLT-EPG (filed April 25 11, 2023), was dismissed on June 21, 2023, after Plaintiff failed to provide sufficient factual 26 allegations to state a claim to relief that was plausible on its face despite being advised of the 27 deficiency and filing an amended complaint failing to cure the defect. (ECF Nos. 6, 10, 12). 28 1 The third case, Maestas v. Phillips, 1:23-cv-00467-JLT-BAM (filed March 28, 2023), was 2 dismissed on April 24, 2023, as duplicative of two other cases that Plaintiff had pending. (ECF 3 Nos. 7, 10). Notably, the district judge noted Plaintiff’s assertion that his “paperwork” may have 4 been mistakenly filed twice, but observed that Plaintiff “state[d] that he has copied his allegations into the proposed first amended complaint in this action,” thus indicating that he intended to raise 5 the same allegations again. (ECF No. 10, p. 2); See Lamon v. Pfeiffer, No. 1:20-CV-00896-AWI- 6 SAB (PC),

, at *4 (E.D. Cal. Aug. 13, 2021), report and recommendation 7 adopted,

(E.D. Cal. Sept. 28, 2021) (concluding that duplicative suit counted 8 as a strike); Lull v. Cnty. of Sacramento, No. 2:20-CV-1645-KJM-CKD,

, at *5 9 (E.D. Cal. Nov. 1, 2021) (“Lawsuits barred by claim preclusion are frivolous if a reasonable and 10 competent inquiry would have led to this conclusion.”). 11 B. Imminent Danger 12 Because Plaintiff had at least three “strikes” prior to filing this action, Plaintiff is 13 precluded from proceeding in forma pauperis unless Plaintiff was, at the time the complaint was 14 filed, in imminent danger of serious physical injury. The availability of the imminent danger 15 exception “turns on the conditions a prisoner faced at the time the complaint was filed, not at 16 some earlier or later time.” Andrews v. Cervantes,

(9th Cir. 2007). 17 “Imminent danger of serious physical injury must be a real, present threat, not merely speculative 18 or hypothetical.” Blackman v. Mjening, No. 1:16-CV-01421-LJO-GSA (PC),

, 19 at *1 (E.D. Cal. Oct. 4, 2016). To meet his burden under § 1915(g), Plaintiff must provide 20 “specific fact allegations of ongoing serious physical injury, or a pattern of misconduct 21 evidencing the likelihood of imminent serious physical injury.” Martin v. Shelton,

, 22 1050 (8th Cir. 2003). “[V]ague and utterly conclusory assertions” of imminent danger are 23 insufficient. White v. Colorado,

(10th Cir. 1998). The “imminent danger” exception is available “for genuine emergencies,” where “time is pressing” and “a threat . . . is 24 real and proximate.” Lewis v. Sullivan,

(7th Cir. 2002). 25 Additionally, there is a nexus requirement between the danger alleged and the claims 26 asserted: “Thus, in order to qualify for the § 1915(g) imminent danger exception, a three-strikes 27 prisoner must allege imminent danger of serious physical injury that is both fairly traceable to 28 1 unlawful conduct alleged in his complaint and redressable by the court.” Ray v. Lara,

692, 701 (9th Cir. 2022). Because Plaintiff is pro se, in making the imminent danger 3 determination, the Court must liberally construe Plaintiff’s allegations. Andrews,

1055. Plaintiff’s complaint alleges that a married correctional officer is flirting with him. While 5 he accuses her of sexual harassment, the majority of the allegations are simply composed of 6 name-calling, which are not relevant here and thus will not be repeated. Plaintiff also summarily 7 asserts that his “personal safety” is a stake, apparently because Defendant is mad that he does not 8 “pay attention to her.” Additionally, Plaintiff’s complaint is filled with unintelligible statements, 9 such as references to President Joseph Biden and Governor Gavin Newsom. Nothing in Plaintiff’s 10 complaint alleges “imminent danger of serious physical injury” as that phrase is used in § 11 1915(g). 12 Accordingly, because Plaintiff is a “three-striker” and does not appear to have been in 13 imminent danger when he filed this action, the Court will recommend that Plaintiff be required to 14 pay the $402.00 filing fee in full if he wants to proceed with the action. 15 III. CONCLUSION, ORDER, AND RECOMMENDATIONS 16 The Court concludes that, under § 1915(g), Plaintiff may not proceed in forma pauperis in 17 this action. 18 Accordingly, IT IS ORDERED that the Clerk of Court is directed to assign a district judge 19 to this case. 20 And IT IS RECOMMENDED that: 21 1. Pursuant to

(g), Plaintiff’s application to proceed in forma pauperis 22 in this action (ECF No. 2) be denied; and 23 2. Plaintiff be directed to pay the $402.00 filing fee in full if he wants to proceed with this action. 24 These findings and recommendations will be submitted to the United States district judge 25 assigned to the case, pursuant to the provisions of Title

(b)(1). Within fourteen 26 (14) days after being served with these findings and recommendations, Plaintiff may file written 27 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 28 1 | Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 2 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler,

, 3 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan,

(9th Cir. 1991)). 4 IT IS SO ORDERED.

6] Dated: _ August 15, 2023 [Je hey 7 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28