1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 FLOYD SCOTT, Case No.: 1:25-cv-00545-KES-SKO 12 Plaintiff, AMENDED FINDINGS AND RECOMMENDATIONS TO DENY 13 v. PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS 14 CALIFORNIA DEPARTMENT OF CORRECTION AND (Doc. 2) 15 REHABILITATION, et al., 14-DAY OBJECTION PERIOD 16 Defendants.

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19 Plaintiff Floyd Scott is appearing pro se in this civil rights action pursuant to 42 U.S.C. 20 section 1983. 21 I. INTRODUCTION 22 On May 8, 2025, Plaintiff filed his complaint; the following day he filed an application to 23 proceed in forma pauperis (IFP). (Docs. 1 & 2.) 24 II. THREE STRIKES PROVISION OF

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governs IFP proceedings. The statute provides that “[i]n no event 26 shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior 27 occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of 1 a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious 2 physical injury.”

(g). 3 In determining whether a case counts as a “strike,” “the reviewing court looks to the 4 dismissing court’s action and the reasons underlying it…. This means that the procedural 5 mechanism or Rule by which the dismissal is accomplished, while informative, is not 6 dispositive.” Knapp v. Hogan,

(9th Cir. 2013) (citation omitted). 7 III. JUDICIAL NOTICE 8 The Court takes judicial notice1 of several prior lawsuits filed by Plaintiff in California 9 district courts and the Ninth Circuit Court of Appeals: 10 1. Scott v. Lewis, No. 3:94-cv-04355-EFL (N.D. Cal.) (dismissed for failure to state a claim 11 on January 27, 1995) 12 2. Scott v. Bradley, No. 3:96-cv-01189-EFL (N.D. Cal.) (dismissed for failure to state a 13 claim on April 15, 1996) 14 3. Scott v. De La Cruz, No. 2:13-cv-02928-UA-AJW (C.D. Cal.) (dismissed for failure to 15 state a claim on May 17, 2013) 16 4. Scott v. Acosta, No. 2:16-cv-08000-JVS-AJW (C.D. Cal.) (dismissed for failure to state a 17 claim on December 16, 2016) 18 5. Scott v. Cody, No. 19-55631 (9th Cir.) (dismissed as frivolous on September 16, 2019) 19 6. Scott v. Adventist Health Bakersfield, No. 1:22-cv-01334-KES-CDB (E.D. Cal.) 20 (dismissed for failure to state a claim on October 22, 2024) 21 A dismissal for a failure to state a claim is a strike for purposes of

(g). 22 Moore v. Maricopa Cnty. Sheriff’s Office,

(9th Cir. 2011). Because Plaintiff 23 has incurred at least three prior “strikes,” and each was dismissed prior to the commencement of 24 the current action on May 8, 2025, Plaintiff is subject to the section 1915(g) bar. Moreover, he is 25 precluded from proceeding IFP in this action unless, at the time he filed his complaint, he was 26

27 1 The Court may take judicial notice of court records. United States v. Wilson,

(9th Cir. 1980). 1 under imminent danger of serious physical injury. See Andrews v. Cervantes,

, 2 1052-53 (9th Cir. 2007). 3 IV. IMMINENT DANGER DISCUSSION 4 Plaintiff’s Allegations 5 The Court has conducted a review of Plaintiff’s pending complaint. Plaintiff names the 6 California Department of Corrections and Rehabilitation (CDCR), as well as several officials, 7 including directors and/or secretaries and wardens, of Kern Valley State Prison (KVSP), Salinas 8 Valley State Prison (SVSP), and California State Prison-Lancaster (CSP-LAC). He alleges Eighth 9 Amendment deliberate indifference to health and safety claims, claiming the named defendants 10 failed “to fix or repair their contaminated water supply,” causing Plaintiff “serious medical 11 problems” and placing him in imminent danger. He seeks “Ten Million Dollars from each named 12 Defendant at KVSP” for “not Repairing their Contaminated Water Supply” and “Five Million 13 Dollars each” from “the CDCR and the named Defendants” for “failing to Control the Water 14 Systems Located on California State Prison Property.” Plaintiff also seeks an order permitting 15 him permanent single cell status. 16 Plaintiff alleges that in 2012 he began suffering from “a knot on his neck,” choking, and 17 difficulty swallowing food. Several biopsies and scans were performed over a period of years. In 18 2023, Plaintiff was diagnosed with thyroid cancer resulting in surgical removal of his thyroid 19 gland. At that time, Plaintiff was housed at KVSP and learned the water supply at the institution 20 was contaminated by arsenic and other cancer-causing agents. Plaintiff asserts excessive arsenic 21 consumption causes thyroid cancer. He states he takes and will continue to take a daily 22 medication following the removal of his thyroid gland. Apparently during this same period, 23 Plaintiff developed an enlarged prostate and underwent two surgical procedures for “uncontrolled 24 urination flow.” Plaintiff alleges he “is continuously monitored for Prostate Cancer” and “has 25 seen at least four different” urologists. 26 In 2017, while housed at SVSP, Plaintiff developed intestinal problems, including chronic 27 diarrhea. He was hospitalized for intestinal bleeding and underwent a colonoscopy. And while 1 underwent an emergency endoscopy and colonoscopy. Plaintiff alleges he is continuously 2 monitored for colon cancer. Plaintiff contends the water at SVSP was contaminated by rodent 3 fecal matter and contains “Per-And Polyfloroalkyl Substances (PFAS) known as FOREVER 4 Chemicals which never goes away once inside your body.” Plaintiff contends the water at CSP- 5 LAC contains excessive calcium, building up as a solid that he was forced to consume. 6 Plaintiff further alleges he wears a urinary leg bag with extension tubing and a male 7 external catheter which requires him to “’Pump up his Phallus.’” He contends this presents an 8 imminent danger because “others will look at it as something else to reach pleasure which can 9 lead to fights or Rules Violation Reports from staff.” Plaintiff states that on December 31, 2024, 10 he was removed from single cell status “so that it would be easier to transfer [him] to a Level 11 Two Prison in total disregard” of his safety because there “could be fights” and he is a 67-year- 12 old man with serious medical issues “who can not properly defend” himself. 13 Plaintiff contends he “still has Thyroid Cancer” and continues to urinate and defecate 14 excessively because of the contaminated water at KVSP, SVSP, and CSP-LAC. 15 Analysis 16 The availability of the imminent danger exception turns on the conditions a prisoner faced 17 at the time the complaint was filed, not at some earlier or later time. See Andrews,

1053. The “imminent danger” exception is available “for genuine emergencies,” where “time is 19 pressing” and “a threat ... is real and proximate.” Lewis v. Sullivan,

(7th Cir. 20 2002). Here, Plaintiff’s allegations do not meet the imminent danger exception. 21 First, the status of Plaintiff’s thyroid cancer is unclear. His states his thyroid gland was 22 removed2 in 20233 and that he takes thyroid hormone replacement pills. Plaintiff does not allege 23 that following removal of his thyroid gland the cancer spread to other his tissues, lymph nodes, or

24 2 “Surgery is the most common treatment for thyroid cancer.” A total thyroidectomy involves “[r]emoval 25 of all but a very small part of the thyroid. Lymph nodes near the cancer may also be removed and checked under a microscope for signs of cancer.” See https://www.cancer.gov/types/thyroid/patient/thyroid- 26 treatment-pdq, last accessed May 12, 2025.

27 3 Plaintiff contends: “Dr. Driskoll in San Diego, California, [performed] the removal of the Plaintiffs right side Thyroid which turned out to be full of Cancer so the Plaintiff had to have the left side Thyroid removed also which also had cancer in it.” (Doc. 1 at 8.) 1 blood, or that the thyroid cancer spread to other parts of his body.4 Nor does Plaintiff allege he 2 underwent radiation therapy that would kill any cancer cells that were not removed following 3 surgery.5 Thus, it appears the 2023 total thyroidectomy successfully treated Plaintiff’s thyroid 4 cancer,6 and although he will likely be monitored for any recurrence, Plaintiff fails to allege any 5 such recurrence. Therefore, Plaintiff alleges a past harm rather than a present genuine emergency 6 where the threat was real and proximate at the time he filed his complaint. Andrews,

1053; Lewis,

; see also Clarke v. DeKalb Cnty. Sterigenics Plant Bd. of Dir. and 8 Bd. of Comm’n, No. 1:22-cv-4445-SCJ-JKL,

, at *1 (N.D. Geo. Feb. 6, 2023) 9 (where plaintiff alleged he contracted cancer in 2008 after being supplied with carcinogenic toilet 10 paper between 1990 and 2010, stating: “Plaintiff has not alleged any acts or omissions by 11 Defendant that place him presently in imminent danger of serious physical injury, or otherwise 12 alleged that he is facing a total withdrawal of medical care for his cancer (to the contrary, Plaintiff 13 alleges that his cancer requires repeated, invasive treatments). Indeed, Plaintiff's claims for 14 compensatory and punitive damages based on Defendant's alleged failure to warn, by their nature, 15 seek to remedy purported past harm. Consequently, Plaintiff has not shown imminent danger of 16 serious physical injury, and this IFP action is barred under

(g) [citations 17 omitted]”) 18 Second, to the extent Plaintiff alleges that he is being continuously monitored for colon 19 and prostate cancer, he fails to allege any diagnoses of these cancers. Continuous monitoring does 20 not equate to an imminent danger of serious physical injury; it instead demonstrates Plaintiff’s 21 medical conditions are currently being treated and constantly reevaluated. While the Court 22 understands Plaintiff’s concerns regarding colon and prostate cancer given his medical history, 23

24 4 See https://www.cancer.gov/types/thyroid/patient/thyroid-treatment-pdq, last accessed May 12, 2025.

25 5 See https://www.cancer.gov/types/thyroid/patient/thyroid-treatment-pdq, last accessed May 12, 2025.

26 6 “[M]ost thyroid cancers are curable with treatment, especially if the cancer cell haven’t spread to distant parts of [the] body.” https://my.clevelandclinic.org/health/diseases/12210-thyroid-cancer, last accessed 27 May 12, 2025. “Most people diagnosed with thyroid cancer have an excellent prognosis, as most thyroid cancers can be cured with treatment.” https://www.mayoclinic.org/diseases-conditions/thyroid- cancer/diagnosis-treatment/drc-20354167, last accessed May 12, 2025. 1 Plaintiff’s current fears amount to speculation, not a demonstration of a present genuine 2 emergency with a real and proximate risk. Lewis,

; Blackman v. Mjening, No. 3 1:16-01421-LJO-GSA-PC,

, at *1 (E.D. Cal. Oct. 4, 2016) (“Imminent danger 4 of serious physical injury must be a real, present threat, not merely speculative or hypothetical”); 5 see also Sykes v. Trost, No. 16-cv-01241-SMY,

, at *3 (S.D. Ill. Jan. 9, 2017) 6 (considering prisoner’s chronic conditions, including “enlarged prostate, bloody stool, difficulties 7 urinating, etc.” and noting “the chronic conditions are stable and, though obviously aggravating to 8 Plaintiff, present no imminent danger of serious physical injury” and that “the Complaint suggests 9 that Plaintiff has received regular, ongoing medical treatment for these conditions”). 10 Finally, Plaintiff asserts that his use of a male external catheter requires him to “’Pump up 11 his Phallus,’” and could lead to fights or rules violation reports for inappropriate sexual behavior 12 because he is no longer in a single cell and has no privacy. These assertions relate to speculative 13 or hypothetical future harm and are insufficient to establish an imminent danger of serious 14 physical harm. See, e.g., Ray v. Sullivan, No. 1:20-cv-01699-NONE-HBK,

, at 15 *4 (E.D. Cal. June 2, 2021) (imminent danger must involve a real, present threat, not merely a 16 speculative or hypothetical one); Cramer v. Jones, No. 1:19-cv-000161-DAD-SKO,

402018, at *3 (E.D. Cal. Jan. 24. 2020) (finding “Plaintiff’s generalized fear of potential harm to 18 be suffered in the future due to his filing of this lawsuit is insufficient to satisfy section 1915(g)’s 19 ‘imminence’ requirement. Plaintiff has also failed to allege a threat of imminent serious physical 20 injury beyond that which is merely speculative or hypothetical” [citation omitted]; F&R adopted

, 2020; appeal dismissed Dec. 16, 2020); Blackman,

, at *1; Pauline v. 22 Mishner, No. 09-00182 JMS/KSC,

, at *3 (D. Haw. May 28, 2009) (“Plaintiff's 23 vague and conclusory allegations of possible future harm to himself or others are insufficient to 24 trigger the ‘imminent danger of serious physical injury’ exception to dismissal under § 1915(g)”). 25 In sum, Plaintiff fails to present a genuine emergency or threat that is real and proximate 26 at the time he filed his complaint. Therefore, Plaintiff should be precluded from proceeding IFP in 27 this action. Andrews,

; Lewis,

. 1 V. ORDER AND RECOMMENDATION 2 Based on the foregoing, the Court RECOMMENDS that: 3 1. Plaintiff’s application to proceed IFP (Doc. 2) be DENIED and Plaintiff be precluded 4 from proceeding IFP in this action in accord with

(g); and 5 2. Plaintiff be ordered to pay the $405.00 filing fee in full within 30 days. 6 These Findings and Recommendations will be submitted to the United States District 7 Judge assigned to this case, pursuant to the provisions of

(b)(l). Within 14 days 8 after being served with a copy of these Findings and Recommendations, a party may file written 9 objections with the Court. Local Rule 304(b). The document should be captioned, “Objections to 10 Magistrate Judge’s Findings and Recommendations” and shall not exceed fifteen (15) pages 11 without leave of Court and good cause shown. The Court will not consider exhibits attached to 12 the Objections. To the extent a party wishes to refer to any exhibit(s), the party should reference 13 the exhibit in the record by its CM/ECF document and page number, when possible, or otherwise 14 reference the exhibit with specificity. Any pages filed in excess of the fifteen (15) page limitation 15 may be disregarded by the District Judge when reviewing these Findings and Recommendations 16 under

(b)(l)(C). A party’s failure to file any objections within the specified time 17 may result in the waiver of certain rights on appeal. Wilkerson v. Wheeler,

, 839 18 (9th Cir. 2014). 19 IT IS SO ORDERED. 20

21 Dated: May 13, 2025 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 22

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