(PC) Ray, Jr. v. Ribera ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 EDWARD VINCENT RAY, JR., Case No. 1:19-cv-01561-SKO (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S MOTION TO 13 v. PROCEED IN FORMA PAUPERIS AND DISMISS ACTION WITHOUT PREJUDICE 14 A. RIBERA, et al., (Doc. 2) 15 Defendants. 14-DAY DEADLINE 16 Clerk of Court to Assign a District Judge 17 18 Plaintiff Edward Vincent Ray, Jr., seeks to proceed in forma pauperis (“IFP”) pursuant to 19 28 U.S.C. section 1915. (Doc. 2.) Because Plaintiff has three “strikes” under section 1915(g) and 20 fails to show that he is in imminent danger of serious physical injury, the Court recommends that 21 Plaintiff’s motion be DENIED. 22 I. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915 23 28 U.S.C. section 1915 governs proceedings in forma pauperis. The statute provides that 24 “[i]n no event shall a prisoner bring a civil action … under this section if the prisoner has, on 3 or 25 more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in 26 a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or 27 fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 1 II. PLAINTIFF’S STRIKES 2 The Court takes judicial notice of three of Plaintiff’s prior lawsuits that were dismissed on 3 the grounds that they were frivolous, malicious, or failed to state a claim:1 (1) Ray v. Bruiniers, 4 Case No. 3:10-cv-00824-SI (N.D. Cal.) (dismissed on September 1, 2010, as frivolous and for 5 failure to state a claim); (2) Ray v. Friedlander, Case No. 3:10-cv-01107-SI (N.D. Cal) (dismissed 6 on September 1, 2010, as frivolous and for failure to state a claim); and (3) Ray v. Schoo, et al., 7 Case No. 5:10-cv-00942-VAP-PJW (C.D. Cal.) (dismissed on January 2, 2014, for failure to state 8 a claim). Each of these cases was dismissed prior to Plaintiff initiating the current action on 9 November 1, 2019. Plaintiff is therefore precluded from proceeding IFP in this action unless, at 10 the time he filed his complaint, he was under imminent danger of serious physical injury. See 11 Andrews v. Cervantes, 493 F.3d 1047, 1052-53 (9th Cir. 2007). 12 In his complaint, Plaintiff alleges that he is “being poisoned … (slowly) … by the 13 contaminated drinking water; the water he must shower in; the meals prepared in the water; [and] 14 his clothes … being washed in the water.” (Doc. 1 at 4.) He claims that he is in “‘imminent 15 danger of serious physical injury,’ due to the ‘lead, and/or coliform [b]acteria’ at the 16 [c]orrectional [i]nstitution (CCI) he is currently confined at.” (Id.). 17 The Court finds that Plaintiff’s allegations do not meet the imminent danger exception. As 18 an initial matter, Plaintiff provides no basis for the allegation that the prison’s water supply is 19 contaminated or that he is being poisoned. Second, Plaintiff does not state how he has been 20 placed in imminent danger of serious physical injury. Plaintiff cites Helling v. McKinney, 509 21 U.S. 25 (1993), to support his argument that the imminent danger exception applies here. (Doc. 1 22 at 4.) However, the Helling Court held that the plaintiff may pursue an Eighth Amendment claim 23 by alleging that the defendants exposed him to tobacco smoke, which posed “an unreasonable risk 24 of serious damage to his future health.” Helling, 509 U.S. at 35. The standard for IFP status, 25 though, is not whether a plaintiff’s future health may be at risk, but whether he is in imminent 26 danger of serious injury. Plaintiff does not make that showing. 27 /// 1 III. CONCLUSION AND RECOMMENDATIONS 2 Based on the foregoing, the Court RECOMMENDS that: 3 1. Plaintiff’s motion to proceed in forma pauperis, (Doc. 2), be DENIED; and, 4 2. This action be DISMISSED without prejudice to refiling upon prepayment of the 5 filing fee. 6 The Clerk of the Court is DIRECTED to randomly assign a United States District Judge. 7 These Findings and Recommendations will be submitted to the United States District 8 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days of 9 the date of service of these Findings and Recommendations, Plaintiff may file written objections 10 with the Court. The document should be captioned, “Objections to Magistrate Judge’s Findings 11 and Recommendations.” Plaintiff’s failure to file objections within the specified time may result 12 in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 13 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 14 IT IS SO ORDERED. 15 Sheila K. Oberto 16 Dated: November 8, 2019 /s/ . UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27