(PC) Ruiz v. Stormes ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROGELIO MAY RUIZ, No. 2:19-cv-2352-TLN-EFB P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 NITA L. STORMES, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. He seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a). For the 19 reasons stated below, the court finds that plaintiff has not demonstrated he is eligible to proceed 20 in forma pauperis. 21 A prisoner may not proceed in forma pauperis: 22 if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was 23 dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of 24 serious physical injury. 25 26 28 U.S.C. § 1915(g). Court records reflect that on at least three prior occasions, plaintiff has 27 brought actions while incarcerated that were dismissed as frivolous, malicious, or for failure to 28 state a claim upon which relief may be granted. See (1) Ruiz v. McGuire, No. 3:16-cv-0388-AJB- 1 BLM (S.D. Cal.), ECF No. 6 (May 9, 2016 order dismissing action after plaintiff failed to submit 2 an amended complaint within allotted time following dismissal of complaint for failure to state a 3 claim); (2) Ruiz v. Curry, No. 1:17-cv-1454-DAD-SAB (E.D. Cal.), ECF No. 19 (May 30, 2018 4 order dismissing action for failure to state a claim upon which relief could be granted); and (3) 5 Ruiz v. Curry, No.1:17-cv-1407-SAD-SKO (E.D. Cal.), ECF No. 35 (February 25, 2019 order 6 dismissing action for failure to state a claim upon which relief could be granted). 7 The section 1915(g) exception applies if the complaint makes a plausible allegation that 8 the prisoner faced “imminent danger of serious physical injury” at the time of filing. 28 U.S.C. 9 § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). In this case, plaintiff 10 alleges that magistrate judges in the United States District Court for the Southern District of 11 California have denied his requests for counsel and for an interpreter, thereby discriminating 12 against him and obstructing justice. See ECF No. 1. These allegations fail to demonstrate that 13 plaintiff was under an imminent danger of serious physical injury when he filed this action. 14 Plaintiff’s application for leave to proceed in forma pauperis must therefore be denied pursuant to 15 § 1915(g). Plaintiff must submit the appropriate filing fee in order to proceed with this action. 16 Accordingly, IT IS HEREBY RECOMMENDED that: 17 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 2) be denied; and 18 2. Plaintiff be ordered to pay the $400 filing fee within fourteen days from the date of any 19 order adopting these findings and recommendations and be warned that failure to do so will result 20 in the dismissal of this action. 21 These findings and recommendations are submitted to the United States District Judge 22 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 23 after being served with these findings and recommendations, any party may file written 24 objections with the court and serve a copy on all parties. Such a document should be captioned 25 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 26 ///// 27 ///// 28 ///// 1 || within the specified time may waive the right to appeal the District Court’s order. Turner v. 2 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 3 || Dated: April 7, 2020. ‘ tid, PDEA 5 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28