1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 JAMISI JERMAINE CALLOWAY, No. 2:24-cv-02445 SCR P 11 Plaintiff, 12 v. ORDER & FINDINGS AND RECOMMENDATIONS 13 RONALD BROOM, et al., 14 Defendants. 15 16 Plaintiff is incarcerated in state prison and proceeding pro se with this civil rights action 17 under

. Plaintiff initiated the action by filing a complaint on September 5, 2024 18 (ECF No. 1) and sought leave to proceed in forma pauperis (ECF No. 2). However, a review of 19 court records shows that plaintiff is a “three strikes” litigant.

(g). Calloway v. 20 Nieves, No. 2:19-cv-1792 KJM CKD P,

(E.D. Cal. Oct. 15, 2020), report and 21 recommendation adopted, No. 2:19-cv-1792 KJM CKD P,

(E.D. Cal. Jan. 21, 22 2021). Plaintiff is therefore precluded from proceeding in forma pauperis in this action unless he 23 is “under imminent danger of serious physical injury.”

(g). 24 The “imminent danger” exception applies at the time of filing the complaint. Andrews v. 25 Cervantes,

(9th Cir. 2007) (emphasizing that “it is the circumstances at the 26 time of the filing of the complaint that matters for purposes of the ‘imminent danger’ exception to 27 § 1915(g)”). A prisoner’s complaint can demonstrate “imminent danger” by alleging “an ongoing 28 danger.” Id. at 1056–57 (holding that “a prisoner who alleges that prison officials continue[d] 1 with a practice that has injured him or others similarly situated in the past will satisfy the 2 ‘ongoing danger’ standard”); see also Williams v. Paramo,

(9th Cir. 2015) 3 (“[A] prisoner subject to the three-strikes provision may meet the imminent danger exception and 4 proceed in forma pauperis on appeal if he alleges an ongoing danger at the time the notice of 5 appeal is filed.”). 6 The complaint alleges that nearly 200 state prison officials conspired to deny plaintiff 7 medical care and ADA services between July 20, 2023, and November 8, 2023. (ECF No. 1 at 8 14-19.) The crux of the allegations is that plaintiff has received several false and retaliatory rules 9 violations reports (“RVRs”) for not wearing “state blues” during ADA escorts to hemodialysis 10 treatment. Plaintiff claims that state regulations, Cal. Code. Regs., tit. 22, § 79799,1 and facility 11 dress code policies contain no such requirement. Defendants denied his access to dialysis and 12 falsified paperwork to say he refused dialysis for not wearing “state blues.” Plaintiff was 13 hospitalized thirteen times before the issue was resolved on November 8, 2023. By way of relief, 14 plaintiff seeks $1 million dollars from each defendant. (Id. at 20.) 15 Despite the seriousness of the allegations, the undersigned does not find that the complaint 16 presents an imminent risk of serious physical injury under § 1915(g). The complaint repeatedly 17 emphasizes that the denial of dialysis and ADA services ended on November 8, 2023, which was 18 about ten months before plaintiff filed the complaint on September 5, 2024. Thus, because the 19 alleged harmful practice had long ceased, there was no “ongoing danger” when plaintiff initiated 20 the action. Accordingly, the undersigned recommends that plaintiff’s request for leave to proceed 21 in forma pauperis be denied.2 22

23 1 Cal. Code Regs., tit. 22, § 79799 sets forth the rights of inmate-patients. 2 Plaintiff filed a nearly identical complaint against prison medical providers on the same day he 24 initiated this action. In that case, Magistrate Judge Delaney similarly found no imminent danger from the face of the complaint and recommended plaintiff’s request to proceed in forma pauperis 25 be denied. Calloway v. Naphcare Inc., No. 2:24-cv-2446 CKD P,

(E.D. Cal. 26 Sept. 19, 2024) (“The allegations in plaintiff’s complaint concern prior wrongs and plaintiff does not point to anything suggesting he is in imminent danger of serious physical injury.”). Judge 27 Delaney later vacated the recommendation when plaintiff paid the filing fee. Calloway v. Naphcare Inc., No. 2:24-cv-2446 CKD P,

(E.D. Cal. Oct. 2, 2024), 28 reconsideration denied, No. 2:24-cv-2446 DJC CKD,

(E.D. Cal. Feb. 14, 2025). 1 CONCLUSION 2 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall randomly 3 || assign a District Judge to this action. 4 In addition, IT IS HEREBY RECOMMENDED that: 5 1. Plaintiffs request to proceed in forma pauperis (ECF NO. 2) be denied; and 6 2. Plaintiff be granted thirty (30) days from the date of the adoption of this finding 7 || and recommendation to pay the $405 filing fee for this action. 8 These findings and recommendations are submitted to the United States District Judge 9 || assigned to the case, pursuant to the provisions of

(b)(1). Within twenty-one (21) 10 | days after being served with these findings and recommendations, plaintiff may file written 11 | objections with the court. Such a document should be captioned “Objections to Magistrate 12 | Judges Findings and Recommendations.” Plaintiff is advised that failure to file objections within 13 | the specified time may waive the right to appeal the District Court’s order. Martinez v. □□□□□ 951 14 | F.2d 1153 (9th Cir. 1991). 15 | DATED: October 10, 2025 16 Kink 17 SEAN C. RIORDAN 18 UNITED STATES MAGISTRATE JUDGE

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