(PC) Wilson v. Meritt

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA DAVID WAYNE WILSON, Case No.: 1:22-cv-00455-JLT-CDB (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DENY 13 v. DEFENDANTS’ MOTION TO REVOKE PLAINTIFF’S IN FORMA PAUPERIS LURA MERRITT, et al., STATUS 15 Defendants. (Doc. 70) Plaintiff seeks to hold defendants liable for violations of his civil rights pursuant to 42 18 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge pursuant to 28 19 U.S.C. § 636(b)(1)(B) and Local Rule 302.

The magistrate judge recommended Plaintiff’s surreply be stricken and defendants’ motion to revoke Plaintiff’s in forma pauperis (IFP) status be denied. (Doc. 70.) The magistrate judge advised the parties that the “failure to file objections within the specified time may result in waiver of his rights on appeal.” (Id. at 15, citing Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014); Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). Defendants filed their objections on August 30, 2024. (Doc. 71.)

According to 28 U.S.C. § 636(b)(1)(C), this Court conducted a de novo review of this case. Having carefully reviewed the matter, including defendants’ objections, the Court | concludes the Findings and Recommendations to be supported by the record and proper analysis.

2 | Among other things, as the magistrate judge explained, despite Plaintiff having three prior | “strikes” under 18 U.S.C. § 1915(g), Plaintiff's initial IFP application was granted based upon | allegations of imminent danger contained in his initial complaint. (Doc. 70 at 10.) The Defense | contends that Plaintiff's IFP status must be revoked because the imminent danger allegations | were related to a claim that was later dismissed. (See generally Doc. 71.) However, the magistrate | judge correctly concluded that imminent danger for purposes of § 1915(g) is evaluated at the || commencement of the action and the Court need not reexamine the issue subsequently. Ud.) The | cases cited by the defense, including Ray v. Lara, 31 F.4th 692, 700 (9th Cir. 2022) (requiring “a || nexus between the alleged imminent danger and the violations of law alleged in the prisoner’s | complaint” and explaining that to find a nexus, a court must determine “(1) whether the imminent | danger of serious physical injury that a three-strikes litigant alleges is fairly traceable to unlawful | conduct asserted in the complaint and (2) whether a favorable judicial outcome would redress that | injury’), do not directly address the relevant issue: the timing of the imminent danger/nexus || analysis vis-a-vis dismissal of a claim. Thus, the Court ORDERS: 16 1. The Findings and Recommendations issued on August 16, 2024 (Doc. 70) are 17 ADOPTED IN FULL.

18 2. Plaintiff's sur-reply (Doc. 69) filed August 7, 2024, is STRICKEN; and 19 3. Defendants’ motion to revoke Plaintiff's IFP status (Doc. 62) is DENIED.

20 4. This matter is referred back to the assigned magistrate judge for further proceedings.

IT IS SO ORDERED.

23 | Dated: _October 29, 2024 Charis [Tourn TED STATES DISTRICT JUDGE