(PC) Ruiz v. Ehlers ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROGELIO MAY RUIZ, Case No. 2:21-cv-00146-JAM-JDP (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS DENYING MOTION TO PROCEED IN FORMA 13 v. PAUPERIS AND REQUIRING PAYMENT OF FILING FEE IN FULL WITHIN TWENTY-ONE 14 R. EHLERS, DAYS 15 Defendant. ECF No. 2 16 OBJECTIONS DUE WITHIN 14 DAYS 17 18 19 Plaintiff, a state prisoner proceeding without counsel, has filed a complaint alleging 20 claims under 42 U.S.C. § 1983 together with an application to proceed in forma pauperis. ECF 21 No. 1 & 2. In an order filed March 15, 2021, I observed that it appeared that plaintiff is 22 prohibited from proceeding in forma pauperis because he has previously had three actions 23 dismissed for failure to state a claim. ECF No. 7; 28 U.S.C. § 1915(g). I noted that plaintiff 24 would still be permitted to proceed in forma pauperis if his complaint alleged that he is in 25 imminent danger of serious physical injury. But because the complaint’s allegations—which are 26 based on a discrete event occurring in the past—did not show him to be in imminent danger, I 27 ordered him to show cause within twenty-one days why, in spite of his “three-striker” status, he 28 should be allowed to proceed in form pauperis. ECF No. 8. I also warned plaintiff that failure to 1 | provide an adequate justification for being allowed to proceed in forma pauperis would result in a 2 || recommendation that his application be denied. 3 Plaintiff subsequently filed a motion for appointment of counsel. ECF No. 9. On May 5, 4 | 2021, I denied that motion but granted him until May 27, 2021 to show cause why he should be 5 | allowed to proceed in forma pauperis. ECF No. 10. The deadline has passed, and plaintiff has 6 | not responded to either the March 15 order or the May 5 order. 7 Accordingly, it is RECOMMENDED that: 8 1. Plaintiffs application to proceed in forma pauperis, ECF No. 2, be denied for the 9 | reasons set forth in the March 15, 2021 order. 10 2. Plaintiff be ordered to pay the $402 filing fee within twenty-one days of any order 11 || adopting these findings and recommendations. 12 3. If plaintiff fails to pay the $402 filing fee within twenty-one days of any order adopting 13 | these findings and recommendations, this action be dismissed without prejudice. 14 These findings and recommendations are submitted to the United States District Judge 15 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 16 | after being served with these findings and recommendations, any party may file written 17 | objections with the court and serve a copy on all parties. Such a document should be captioned 18 | “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 19 | within the specified time may waive the right to appeal the District Court’s order. Turner v. 20 | Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 21 IT IS SO ORDERED. 23 ( q oy — Dated: _ August 13, 2021 Q_-——— 24 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 26 27 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28