1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 REGINALD EDWARD SPEARMAN, No. 2:25-cv-0177-SCR 12 Plaintiff, 13 v. ORDER AND 14 MARIE CALENDARS, et al., FINDINGS AND RECOMMENDATIONS 15 Defendants. 16 17 Plaintiff is a former county inmate representing himself in this civil rights action filed 18 pursuant to

. This proceeding was referred to this court by Local Rule 302 19 pursuant to

(b)(1). 20 Plaintiff has not paid the court’s filing fee or requested leave to proceed in forma pauperis 21 pursuant to

. Normally the court would provide plaintiff the opportunity to 22 submit a motion to proceed in forma pauperis. However, a review of court records reveals that on 23 at least three occasions while incarcerated, plaintiff has filed lawsuits that have been dismissed on 24 the grounds that they were frivolous or malicious or failed to state a claim upon which relief may 25 be granted. See

(g). 26 “[Section] 1915(g) should be used to deny a prisoner’s [in forma pauperis] status only 27 when, after careful evaluation of the order dismissing an action, and other relevant information, 28 the district court determines that the action was dismissed because it was frivolous, malicious or 1 failed to state a claim.” Andrews v. King,

, 1121 (9th Cir. 2005). Dismissal counts 2 as a strike under § 1915(g) “when (1) a district court dismisses a complaint on the ground that it 3 fails to state a claim, (2) the court grants leave to amend, and (3) the plaintiff then fails to file an 4 amended complaint” regardless of whether the case was dismissed with or without prejudice. 5 Harris v. Mangum,

(9th Cir. 2017). 6 The court takes judicial notice of the following previously filed lawsuits:1 7 1. Spearman v. B-Side Bar, No. 2:21-cv-1216 KJM DMC (case dismissed on April 12, 8 2023, for failure to state a claim (ECF No. 12)); 9 2. Spearman v. Towing, No. 2:21-cv-1288 KJM JDP (case dismissed as frivolous on 10 June 28, 2022, for failure to state a claim (ECF No. 8)); 11 3. Spearman v. Hillberg, No. 23-cv-0093 DJC DMC (complaint dismissed with leave to 12 amend for failure to state a claim (ECF No. 11), case dismissed on August 1, 2024, for 13 failure to file an amended complaint (ECF No. 13)). 14 All of the preceding cases were dismissed well in advance of the January 1, 2025 15 constructive filing date of the instant action, and none of these strikes have been overturned on 16 appeal. Therefore, the undersigned finds that plaintiff has filed three or more prior actions that 17 constitute strikes under

(g). 18 Having determined that plaintiff has accrued three prior strikes, he is therefore precluded 19 from proceeding in forma pauperis in this action unless he is “under imminent danger of serious 20 physical injury.”

(g). This exception applies at the time of filing the complaint. 21 Andrews v. Cervantes,

(9th Cir. 2007) (emphasizing that “it is the 22 circumstances at the time of the filing of the complaint that matters for purposes of the ‘imminent 23 danger’ exception to § 1915(g)”). Plaintiff has not alleged any facts in the complaint which 24 suggest that he is under imminent danger of serious physical injury. The allegations pertain to a 25 physical assault that occurred at a Marie Callendar’s restaurant, which appears to be an isolated 26 1 See Fed. R. Evid. 201 (the court may take judicial notice of facts that are capable of accurate 27 determination by sources whose accuracy cannot reasonably be questioned); Harris v. County of Orange,

(9th Cir. 2012) (a court may take judicial notice of undisputed 28 matters of public record including documents on file in federal or state courts). 1 | incident. Plaintiff does not allege any facts that would suggest that the event is likely to reoccur. 2 || Thus, plaintiff must submit the appropriate filing fee in order to proceed with this action. 3 Accordingly, IT IS HEREBY ORDERED that the Clerk of Court randomly assign this 4 || matter to a district court judge. 5 IT IS FURTHER RECOMMENDED that plaintiff be ordered to pay the entire $405.00 in 6 || filing fees within thirty days from the date of this order or face dismissal of the case. 7 These findings and recommendations are submitted to the United States District Judge 8 || assigned to the case, pursuant to the provisions of

(b)(1). Within twenty one days 9 || after being served with these findings and recommendations, plaintiff may file written objections 10 | with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 11 | and Recommendations.” Plaintiff is advised that failure to file objections within the specified 12 | time may waive the right to appeal the District Court’s order. Martinez v. YIst,

13 | (9th Cir. 1991). 14 | DATED: September 16, 2025 ° md 16 SEAN C. RIORDAN 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28