1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ALEX LEONARD AZEVEDO, Case No. 1:24-cv-01373-KES-EPG (PC) 11 Plaintiff, ORDER DISCHARGING ORDER TO SHOW CAUSE 12 v. (ECF No. 8) 13 DEPARTMENT OF STATE HOSPITAL COALINGA, FINDINGS AND RECOMMENDATIONS, 14 RECOMMENDING THAT PLAINTIFF’S IFP Defendant. APPLICATION BE DENIED AND THAT 15 PLAINTIFF BE REQUIRED TO PAY THE FILING FEE IN FULL IF HE WANTS TO 16 PROCEED WITH THIS ACTION 17 (ECF No. 2) 18 OBJECTIONS, IF ANY, DUE WITHIN THIRTY (30) DAYS 19 20 Plaintiff Alex Leonard Azevedo is a state prisoner proceeding pro se in this civil rights 21 action filed under

. (ECF No. 1). On November 4, 2024, Plaintiff filed an 22 application to proceed in forma pauperis in this action. (ECF No. 2). 23 Because the Court concludes that Plaintiff had at least three “strikes” prior to filing this 24 action and because he was not in imminent danger of serious physical injury at the time he filed 25 it, the Court will recommend that Plaintiff be required to pay the $405 filing fee in full if he wants 26 to proceed with the action. 1 27 1 The Court issued an order to show cause on November 15, 2024, noting that it appeared that Plaintiff’s 28 claims were duplicative of an earlier-filed lawsuit, Azevedo v. Department of State Hospital Coalinga, 1 I. THREE-STRIKES PROVISION OF

(g) 2 Pertinent here is the so called “three strikes provision” of

. 3 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, 4 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 5 may be granted, unless the prisoner is under imminent danger of serious physical injury. 6

(g). In determining whether a dismissal counts as a “strike” under § 1915(g), 7 “the reviewing court looks to the dismissing court’s action and the reasons underlying it. . . . This 8 means that the procedural mechanism or Rule by which the dismissal is accomplished, while 9 informative, is not dispositive.” Knapp v. Hogan,

(9th Cir. 2013) (internal 10 citation omitted). The Ninth Circuit has “interpreted the final form of dismissal under the statute, 11 ‘fail[ure] to state a claim upon which relief may be granted,’ to be essentially synonymous with a 12 Federal Rule of Civil Procedure 12(b)(6) dismissal.”

(alteration in original). 13 II. ANALYSIS 14 A. Strikes 15 Plaintiff filed this action on November 4, 2024, with the complaint being dated October 16 30, 2024. (ECF No. 1). The Court takes judicial notice2 of the following four cases, each of which 17 counts as a “strike”: (1) Azevedo v. Thompson, et al., No. 2:17-cv-01262-MCE-EFB (E.D. Cal. 18 April 10, 2018) (dismissed for failure to state a claim at screening); (2) Azevedo v. Colusa County 19 Jail, et al., No. 2:17-cv-00472-JAM-AC (E.D. Cal. Feb. 21, 2018) (dismissed for failure to state a 20 claim at screening); (3) Azevedo v. Smith, et al., No. 2:16-cv-01214-TLN-AC (E.D. Cal. Aug. 9, 21 2016) (dismissed for failure to state a claim at screening); (4) Azevedo v. Smith, et al., No. 2:16- cv-2809-JAM-EFB (E.D. Cal. Feb. 21, 2018) (dismissed for failure to state a claim). Moreover, 22 Plaintiff has previously been denied IFP status by at least one other court because of his three- 23 striker status. See Azevedo v. Smith, et al., No. 2:18-cv-02818-TLN-AC (E.D. Cal.). 24 \\\ 25 26 1:24-cv-01345-KES-HBK. (ECF No. 8). However, because that other case has since been voluntarily 27 dismissed and closed, the Court discharges the show cause order. 2 “In particular, a court may take judicial notice of its own records in other cases . . . .” United States v.

F.2d 118, 119 (9th Cir. 1980). 1 B. Imminent Danger 2 Because Plaintiff had at least three “strikes” prior to filing this action, Plaintiff is 3 precluded from proceeding in forma pauperis unless Plaintiff was, at the time the complaint was 4 filed, in imminent danger of serious physical injury. The availability of the imminent danger exception “turns on the conditions a prisoner faced at the time the complaint was filed, not at 5 some earlier or later time.” Andrews v. Cervantes,

(9th Cir. 2007). 6 “Imminent danger of serious physical injury must be a real, present threat, not merely speculative 7 or hypothetical.” Blackman v. Mjening, No. 1:16-CV-01421-LJO-GSA (PC),

, 8 at *1 (E.D. Cal. Oct. 4, 2016). To meet his burden under § 1915(g), Plaintiff must provide 9 “specific fact allegations of ongoing serious physical injury, or a pattern of misconduct 10 evidencing the likelihood of imminent serious physical injury.” Martin v. Shelton,

, 11 1050 (8th Cir. 2003). “[V]ague and utterly conclusory assertions” of imminent danger are 12 insufficient. White v. Colorado,

(10th Cir. 1998). The “imminent danger” 13 exception is available “for genuine emergencies,” where “time is pressing” and “a threat . . . is 14 real and proximate.” Lewis v. Sullivan,

(7th Cir. 2002). 15 Additionally, there is a nexus requirement between the danger alleged and the claims 16 asserted: “Thus, in order to qualify for the § 1915(g) imminent danger exception, a three-strikes 17 prisoner must allege imminent danger of serious physical injury that is both fairly traceable to 18 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 20 determination, the Court must liberally construe Plaintiff’s allegations. Andrews,

1055. 22 Plaintiff’s complaint alleges that a mental health patient attacked him while he was 23 located at Coalinga State Hospital. (ECF No. 1, p. 3). However, by the time that Plaintiff filed this complaint, he was located in San Quentin State Prison, indicating that the events complained of 24 happened before this transfer. And Plaintiff acknowledges that he was treated for his injuries at an 25 outside hospital. 26 Such allegations are insufficient to show that there is a real and imminent threat to 27 Plaintiff’s personal safety under the standards described above. None of these allegations fairly 28 1 | implicate an ongoing serious physical injury or a pattern of misconduct evidencing the likelihood 2 | of imminent serious physical injury to Plaintiff. 3 Accordingly, because Plaintiff is a “three-striker” and does not appear to have been in 4 | imminent danger when he filed this action, the Court will recommend that Plaintiff be required to 5 | Pay the $405 filing fee in full if he wants to proceed with the action. 6 I. CONCLUSION, ORDER, AND RECOMMENDATIONS 7 Accordingly, IT IS ORDERED that the show cause order is discharged. (ECF No. 8). 3 And IT IS RECOMMENDED that: 1. Plaintiff's application to proceed in forma pauperis be denied. (ECF No. 2). ° 2. Pursuant to

(g), Plaintiff be directed to pay the $405.00 filing fee in 8 full if he wants to proceed with this action. 3. Plaintiff be advised that failure to pay the filing fee in full will result in the dismissal 2 of this case. 13 These findings and recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title

(b)(1). Within thirty (30) 15 days after being served with these findings and recommendations, Plaintiff may file written 16 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 17 | Findings and Recommendations.” Any objections shall be limited to no more than 15 pages, 18 | including exhibits. Plaintiff is advised that failure to file objections within the specified time may 19 | result in the waiver of rights on appeal. Wilkerson v. Wheeler,

(9th Cir. 20 | 2014) (citing Baxter v. Sullivan,

(9th Cir. 1991)). 21 0 IT IS SO ORDERED.

23 | Dated: _ November 25, 2024 hey — UNITED STATES MAGISTRATE JUDGE 25 26 27 28