(PC) Wright v. Zaldivar-Galves

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA KEITH JEROME WRIGHT, No. 1:24-cv-01029 GSA (PC) 12 Plaintiff, ORDER VACATING ORDER TO SHOW CAUSE 13 v. (ECF No. 7) IDALBERTO ZALDIVAR-GALVES, ORDER GRANTING PLAINTIFF’S FIRST- 15 Defendants. FILED APPLICATION TO PROCEED IN FORMA PAUPERIS (ECF Nos. 2, 8) ORDER DISREGARDING AS 18 DUPLICATIVE PLAINTIFF’S SECOND- FILED APPLICATION TO PROCEED IN 19 FORMA PAUPERIS AS MOOT 20 (ECF No. 9) 22 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. He has filed two motions to proceed in forma pauperis. See ECF Nos. 2, 9.

26 On September 3, 2024, the Court issued an order directing Plaintiff to show cause why he should not be required to pay the filing fee in full as a three strikes litigant within the meaning of 28 U.S.C. § 1915(g). ECF No. 7. For the reasons stated below, the order will be vacated. In addition, Plaintiff’s application to proceed in forma pauperis, docketed August 29, 2024 (ECF No. 2, 8), will be granted, and his in forma pauperis application docketed September 20, 2024 (ECF No. 9), will be disregarded as duplicative.

4 I. RELEVANT PROCEDURAL HISTORY 5 On August 29, 2024, Plaintiff’s complaint and his application to proceed in forma pauperis were docketed. ECF Nos. 1, 2. Shortly thereafter, on September 3, 2024, the Court ordered Plaintiff to show cause why, consistent with the three strikes rule of 28 U.S.C. § 1915(g), he should not be required to pay the filing fee in full prior to proceeding with this matter. ECF No. 7. He was given twenty-one days to respond to the Court’s order. Id. at 4. On the same day, Plaintiff’s prisoner trust fund account statement, which must accompany an application to proceed in forma pauperis (see 28 U.S.C. § 1915(a)(2)), was docketed. ECF No. 8.

12 On September 20, 2024, Plaintiff filed a second application to proceed in forma pauperis.

13 ECF No. 9. To date, however, Plaintiff has not filed a response to the order to show cause.

14 II. DISCUSSION 15 A three strikes litigant must pay the filing fee for a complaint in full prior to proceeding any further in an action unless he is in imminent danger of serious physical harm at the time he files the complaint, and the imminent harm is related to the violations of right alleged that are alleged in the complaint. see 28 U.S.C. § 1915(g) (imminent danger requirement); Ray v. Lara, 31 F.4th 692, 700 (9th Cir. 2022) (nexus with alleged violations of right requirement). Upon further review of Plaintiff’s complaint, the Court has determined that in the complaint he has made an adequate showing – albeit indirectly – that he was in imminent danger of serious physical harm at the time he filed it, and that the found imminent danger is directly related to the claims in his complaint. Specifically, Plaintiff has alleged violations of his Eighth Amendment rights stemming from Defendant’s failure to treat his shoulder which left him in pain and with an exposed clavicle bone. See ECF No. 1 at 7-11; see also Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007) (stating imminent danger must exist at time complaint was filed); Ray, 31 F.4th at 700.

1 Given these findings, the Court will vacate its order to show cause and will grant Plaintiff’s first-filed application to proceed in forma pauperis. In addition, it will disregard Plaintiff’s second-filed in forma pauperis application as duplicative.

4 Accordingly, IT IS HEREBY ORDERED that: 5 1. The order directing Plaintiff to show cause why his application to proceed in forma pauperis should not be denied in light of 28 U.S.C. § 1915(g) (ECF No. 7) is VACATED; 7 2. Plaintiff’s first-filed application to proceed in forma pauperis (ECF No. 2) is GRANTED, and 9 3. Plaintiff’s second-filed motion to proceed in forma pauperis (ECF No. 9) is DISREGARDED as duplicative.

11 The Court will screen the complaint in due course.

IT IS SO ORDERED.

15 Dated: September 29, 2024 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE