(PC) Rushdan v. Davis ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SALADIN RUSHDAN, Case No. 2:24-cv-02064-JDP (PC) 12 Plaintiff, ORDER 13 v. DIRECTING THE CLERK OF COURT TO ASSIGN A DISTRICT JUDGE TO THIS 14 D. DAVIS, et al., CASE 15 Defendants. FINDINGS AND RECOMMENDATIONS 16 THAT PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS BE 17 DENIED AND HE BE DIRECTED TO PAY THE FILING FEE WITHIN THIRTY DAYS 18 OF ANY ORDER ADOPTING THESE RECOMMENDATIONS 19 ECF No. 2 20 21 Plaintiff has filed a complaint, ECF No. 1, and a request to proceed in forma pauperis, 22 ECF No. 2. He is, however, a “three-striker” within the meaning of Title 28 U.S.C. § 1915(g). 23 He has filed three cases that have been dismissed for failure to state a claim. Plaintiff has had at 24 least three cases dismissed for failure to state a claim upon which relief can be granted: 25 (1) Rushdan v. Gear, No. 1:16-cv-01017-LJO-BAM (E.D. Cal) at ECF Nos. 21 & 23; 26 (2) Rushdan v. Terhune, 2:01-cv-00364-LKK-GGH (E.D. Cal) at ECF Nos. 6-8;1 (3) Rushdan v. 27 1 Here, the magistrate judge found that the complaint did not state a claim and offered 28 leave to amend. Plaintiff declined to amend, and the action was dismissed. This counts as a 1 Ramirez-Palmer, 2:02-cv-00524-DFL-DAD (E.D. Cal) at ECF Nos. 6 & 10. 2 Plaintiff might still be eligible to proceed in forma pauperis if his complaint made a 3 showing of imminent physical danger. The allegations in his complaint are inadequate to make 4 this showing. 5 Plaintiff alleges that, in 2022 and 2023, his rights were violated when defendants assigned 6 him to prison quarters that would be dangerous to his health. ECF No. 1 at 9. Plaintiff allegedly 7 refused to transfer on that basis and received a rules violation report. Id. at 9-10. The complaint 8 in this case was filed in July 2024 and there is no indication therein that he was in any imminent 9 danger at the time the complaint was filed. See Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th 10 Cir. 2007) (“We are in agreement with all of these cases in holding that it is the circumstances at 11 the time of the filing of the complaint that matters for purposes of the ‘imminent danger’ 12 exception to § 1915(g).”). 13 Accordingly, it is ORDERED that the Clerk of Court is directed to assign a district judge 14 to this action. 15 Further, it is RECOMMENDED that plaintiff’s application to proceed in forma pauperis, 16 ECF No. 2, be DENIED and that plaintiff be directed to tender the filing fee within thirty days of 17 any order adopting these recommendations. 18 These findings and recommendations are submitted to the United States District Judge 19 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days of 20 service of these findings and recommendations, any party may file written objections with the 21 court and serve a copy on all parties. Any such document should be captioned “Objections to 22 Magistrate Judge’s Findings and Recommendations,” and any response shall be served and filed 23 within fourteen days of service of the objections. The parties are advised that failure to file 24 objections within the specified time may waive the right to appeal the District Court’s order. See 25 Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 26 1991). 27 28 strike. See Harris v. Mangum, 863 F.3d 1133, 1143 (9th Cir. 2017). 1 > IT IS SO ORDERED. 3 ( | { Wine Dated: _ October 3, 2024 Q_—— 4 JEREMY D. PETERSON 5 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28