(PC) Wright v. Zaldivar-Galves ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEITH JEROME WRIGHT, No. 1:24-cv-01029 GSA (PC) 12 Plaintiff, ORDER VACATING ORDER TO SHOW CAUSE 13 v. (ECF No. 7) 14 IDALBERTO ZALDIVAR-GALVES, ORDER GRANTING PLAINTIFF’S FIRST- 15 Defendants. FILED APPLICATION TO PROCEED IN FORMA PAUPERIS 16 (ECF Nos. 2, 8) 17 ORDER DISREGARDING AS 18 DUPLICATIVE PLAINTIFF’S SECOND- FILED APPLICATION TO PROCEED IN 19 FORMA PAUPERIS AS MOOT 20 (ECF No. 9) 21 22 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 23 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 24 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. He has filed two motions to proceed in forma 25 pauperis. See ECF Nos. 2, 9. 26 On September 3, 2024, the Court issued an order directing Plaintiff to show cause why he 27 should not be required to pay the filing fee in full as a three strikes litigant within the meaning of 28 28 U.S.C. § 1915(g). ECF No. 7. For the reasons stated below, the order will be vacated. In 1 addition, Plaintiff’s application to proceed in forma pauperis, docketed August 29, 2024 (ECF 2 No. 2, 8), will be granted, and his in forma pauperis application docketed September 20, 2024 3 (ECF No. 9), will be disregarded as duplicative. 4 I. RELEVANT PROCEDURAL HISTORY 5 On August 29, 2024, Plaintiff’s complaint and his application to proceed in forma 6 pauperis were docketed. ECF Nos. 1, 2. Shortly thereafter, on September 3, 2024, the Court 7 ordered Plaintiff to show cause why, consistent with the three strikes rule of 28 U.S.C. § 1915(g), 8 he should not be required to pay the filing fee in full prior to proceeding with this matter. ECF 9 No. 7. He was given twenty-one days to respond to the Court’s order. Id. at 4. On the same day, 10 Plaintiff’s prisoner trust fund account statement, which must accompany an application to 11 proceed in forma pauperis (see 28 U.S.C. § 1915(a)(2)), was docketed. ECF No. 8. 12 On September 20, 2024, Plaintiff filed a second application to proceed in forma pauperis. 13 ECF No. 9. To date, however, Plaintiff has not filed a response to the order to show cause. 14 II. DISCUSSION 15 A three strikes litigant must pay the filing fee for a complaint in full prior to proceeding 16 any further in an action unless he is in imminent danger of serious physical harm at the time he 17 files the complaint, and the imminent harm is related to the violations of right alleged that are 18 alleged in the complaint. see 28 U.S.C. § 1915(g) (imminent danger requirement); Ray v. Lara, 19 31 F.4th 692, 700 (9th Cir. 2022) (nexus with alleged violations of right requirement). Upon 20 further review of Plaintiff’s complaint, the Court has determined that in the complaint he has 21 made an adequate showing – albeit indirectly – that he was in imminent danger of serious 22 physical harm at the time he filed it, and that the found imminent danger is directly related to the 23 claims in his complaint. Specifically, Plaintiff has alleged violations of his Eighth Amendment 24 rights stemming from Defendant’s failure to treat his shoulder which left him in pain and with an 25 exposed clavicle bone. See ECF No. 1 at 7-11; see also Andrews v. Cervantes, 493 F.3d 1047, 26 1053 (9th Cir. 2007) (stating imminent danger must exist at time complaint was filed); Ray, 31 27 F.4th at 700. 28 1 Given these findings, the Court will vacate its order to show cause and will grant 2 Plaintiff’s first-filed application to proceed in forma pauperis. In addition, it will disregard 3 Plaintiff’s second-filed in forma pauperis application as duplicative. 4 Accordingly, IT IS HEREBY ORDERED that: 5 1. The order directing Plaintiff to show cause why his application to proceed in forma 6 pauperis should not be denied in light of 28 U.S.C. § 1915(g) (ECF No. 7) is VACATED; 7 2. Plaintiff’s first-filed application to proceed in forma pauperis (ECF No. 2) is 8 GRANTED, and 9 3. Plaintiff’s second-filed motion to proceed in forma pauperis (ECF No. 9) is 10 DISREGARDED as duplicative. 11 The Court will screen the complaint in due course. 12 13 IT IS SO ORDERED. 14 15 Dated: September 29, 2024 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28