1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CARL ECKSTROM, No. 2:24-cv-3549 AC P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 STATE OF CALIFORNIA, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se with this civil action and seeks leave to 18 proceed in forma pauperis under

(a). 19 I. Three Strikes Analysis 20 Plaintiff seeks leave to proceed in forma pauperis under

(a). ECF No. 2. 21 The Prison Litigation Reform Act of 1995 (PLRA) permits any court of the United States to 22 authorize the commencement and prosecution of any suit without prepayment of fees by a person 23 who submits an affidavit indicating that the person is unable to pay such fees. However,

24 [i]n no event shall a prisoner bring a civil action or appeal a judgement in a civil action or proceeding under this section if the 25 prisoner has, on 3 or more occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United 26 States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, 27 unless the prisoner is under imminent danger of serious physical injury. 28 1

(g). The plain language of the statute makes clear that a prisoner is precluded 2 from bringing a civil action or an appeal in forma pauperis if the prisoner has brought three 3 frivolous actions and/or appeals (or any combination thereof totaling three). Rodriguez v. Cook, 4

(9th Cir. 1999). “[Section] 1915(g) should be used to deny a prisoner’s [in 5 forma pauperis] status only when, after careful evaluation of the order dismissing an action, and 6 other relevant information, the district court determines that the action was dismissed because it 7 was frivolous, malicious or failed to state a claim.” Andrews v. King,

(9th 8 Cir. 2005). 9 Inspection of other cases filed by plaintiff has led to the identification of at least three 10 cases that qualify as strikes. The court takes judicial notice of the following lawsuits filed by 11 plaintiff:1 12 1. Eckstrom v. Reagan, No. 2:98-cv-1034 LKK JFM (E.D. Cal.) (complaint dismissed 13 October 20, 1998, for failure to state a claim (ECF No. 7));2 14 2. Eckstrom v. Beard, No. 2:15-cv-8560 TJH AS (C.D. Cal.) (third amended complaint 15 dismissed on April 24, 2017, for failure to state a claim (ECF No. 36)); 16 3. Eckstrom v. Hoshino, No. 2:16-cv-0538 TLN EFB (E.D. Cal.) (second amended 17 complaint dismissed on January 23, 2020, for failure to state a claim (ECF No. 35)). 18 All of the preceding cases were dismissed well in advance of the December 17, 2024 19 filing of the instant action, and none of the strikes have been overturned. Therefore, this court 20 1 The court “may take notice of proceedings in other courts, both within and without the federal 21 judicial system, if those proceedings have a direct relation to matters at issue.” United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc.,

(9th Cir. 1992) 22 (citation and internal quotation marks omitted) (collecting cases); Fed. R. Evid. 201(b)(2) (court 23 may take judicial notice of facts that are capable of accurate determination by sources whose accuracy cannot reasonably be questioned). 24 2 Because the case is over twenty years old, an electronic copy of the order dismissing the case could not be located. Nonetheless, the court was able to identify the basis for dismissal of the 25 complaint from the Ninth Circuit’s memorandum decision in Case No. 98-17303. No. 2:98-cv- 26 1034, ECF No. 16. The Ninth Circuit summarized and affirmed the district court’s decision to dismiss the complaint for failure to state a claim.

Although plaintiff asserts that this 27 complaint was filed by a different inmate Eckstrom (ECF No. 1 at 7), both the district court and Ninth Circuit dockets reflect that the plaintiff was Carl Eckstrom, CDCR # B-50522. The court is 28 therefore satisfied that case No. 2:98-cv-1034 was filed by plaintiff. 1 finds that plaintiff is precluded from proceeding in forma pauperis unless he is “under imminent 2 danger of serious physical injury.”

(g). To satisfy the exception, plaintiff must 3 have alleged facts that demonstrate that he was “under imminent danger of serious physical 4 injury” at the time of filing the complaint. Andrews v. Cervantes,

(9th Cir. 5 2007) (“[I]t is the circumstances at the time of the filing of the complaint that matters for 6 purposes of the ‘imminent danger’ exception to § 1915(g).”). “[T]he imminent danger exception 7 to the PLRA three-strikes provision requires a nexus between the alleged imminent danger and 8 the violations of law alleged in the complaint.” Ray v. Lara,

, 695 (9th Cir. 2022). 9 The complaint alleges that plaintiff requires compression stockings to manage the edema 10 in his calves and his stockings were improperly taken away on December 24, 2023, and he was 11 not given new stockings until June 18, 2024. ECF No. 1 at 11-15. These allegations do not 12 demonstrate an imminent risk of serious physical injury at the time of filing, and the undersigned 13 will therefore recommend that plaintiff be required to pay the filing fee in full or have the 14 complaint dismissed. 15 II. Plain Language Summary of this Order for a Pro Se Litigant 16 You have at least three strikes under § 1915(g) and cannot be granted in forma pauperis 17 status unless you show the court that you were in imminent danger of serious physical injury at 18 the time you filed the complaint. You have not shown that you were in imminent danger of 19 serious physical injury at the time you filed your complaint and so it is being recommended that 20 your motion to proceed in forma pauperis be denied and you be required to pay the whole filing 21 fee at one time. 22 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall randomly 23 assign a United States District Judge to this action. 24 IT IS FURTHER RECOMMENDED that: 25 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 2) be DENIED; and 26 2. Plaintiff be ordered to pay the entire $405.00 in required fees within thirty days or face 27 dismissal of the case. 28 //// ] These findings and recommendations are submitted to the United States District Judge 2 || assigned to the case, pursuant to the provisions of

(b)(1).. Within twenty-one days 3 || after being served with these findings and recommendations, plaintiff may file written objections 4 || with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 5 || and Recommendations.” Plaintiff is advised that failure to file objections within the specified 6 || time may waive the right to appeal the District Court’s order. Martinez v. YIst,

7 | (th Cir. 1991). 8 || DATED: December 20, 2024 “ 9 Cthten— Lape ALLISON CLAIRE 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28