Opinion
No. 2:19-cv-2350 JAM AC P
07-29-2020
ROGELIO MAY RUIZ, Plaintiff, v. A. HUBBARD, Defendant.
ORDER and FINDINGS AND RECOMMENDATIONS
Plaintiff Rogelio May Ruiz is a state prisoner proceeding pro se with a civil rights complaint, an application to proceed in forma pauperis, and a request for appointment of counsel. This action is referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302(c). For the reasons that follow, this court finds that plaintiff qualifies as a three-strikes litigant under 28 U.S.C. 1915(g) and is not entitled to the statutory exception that would permit him to proceed in forma pauperis. Therefore the undersigned recommends that plaintiff be required to pay the filing fee before his complaint is screened pursuant to 28 U.S.C. § 1915A, and denies plaintiff's request for appointment of counsel without prejudice as premature.
Under 28 U.S.C. § 1915, a federal court may authorize commencement of a suit without prepayment of fees by a person who demonstrates by affidavit that he or she is unable to pay the fees. However, under 28 U.S.C. § 1915(g), a prisoner may not proceed in forma pauperis under the following circumstances:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section 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 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 serious physical injury.
Review of court records demonstrates that on at least three occasions prior to the filing of the instant complaint on November 20, 2019, plaintiff brought actions while incarcerated that were dismissed as "frivolous, malicious, or fail[ed] to state a claim upon which relief may be granted." 28 U.S.C. § 1915(g). These cases include the following:
This court may take judicial notice of its own records and the records of other courts. See United States v. Howard, 381 F.3d 873, 876 n.1 (9th Cir. 2004); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980); see also Fed. R. Evid. 201.
• Ruiz v. McGuire, Case No. 3:16-cv-0388 AJB BLM (S.D. Cal.) (case dismissed May 9, 2016 for failure to file an amended complaint after dismissal of original complaint for failure to state a claim upon which relief may be granted);
• Ruiz v. Curry, Case No. 1:17-cv-1454 DAD SAB (E.D. Cal.) (case dismissed May 30, 2018 for failure to state a claim upon which relief may be granted); and
• Ruiz v. Curry, Case No.1:17-cv-1407 SAD SKO (E.D. Cal.) (case dismissed February 25, 2019 for failure to state a claim upon which relief may be granted), subsequently dismissed on appeal November 22, 2019 as frivolous (9th Cir. Case No. 19-16456).
These rulings render plaintiff a "three-strikes litigant" under the terms of Section 1915(g). Accord, Ruiz v. Woodfill, Case No. 2:20-cv-00205 KJM AC P (E.D. Cal.) (ECF No. 17); Ruiz v. Johnston, Case No. 2:19-cv-02423 WBS EFB P (E.D. Cal.) (ECF No. 12); Ruiz v. Stormes, Case No. 19-cv- 2352 TLN EFB P (E.D. Cal.) (ECF No. 13). As a result, plaintiff may not proceed in forma pauperis in this case unless he was "under imminent danger of serious physical injury" when he filed this action. See 28 U.S.C. § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1053, 1055 (9th Cir. 2007). Imminent danger of physical injury must be demonstrated at the time the action is commenced. Id. at 1053 and citations therein. The danger must be real and proximate, Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003), as well as ongoing, Andrews, 493 F.3d at1056.
In the instant case, plaintiff names one defendant, A. Hubbard, a staff librarian at California State Prison Sacramento. ECF No. 1. Plaintiff alleges that, relative to another case, defendant denied him access to the prison's E-filing procedure and refused to make duplicate copies of his complaint because it was written in Spanish. Plaintiff asserts claims of racial discrimination and obstruction of justice, and avers that he was unable to timely appeal his claims against another magistrate judge.
Plaintiff has filed at least ten cases in this court within the last nine months. --------
These allegations do not reflect that plaintiff was "under imminent danger of serious physical injury" when he filed this action, and thus fail to support a finding that he meets the exception identified in Section 1915(g). Therefore plaintiff must pay the filing fee to proceed with this action, which the undersigned will recommend herein to the district judge.
Due to this pending preliminary matter, plaintiff's motion for appointment of counsel, ECF No. 3, will be denied without prejudice as premature.
Accordingly, IT IS HEREBY ORDERED that plaintiff's motion for appointment of counsel, ECF No. 3, is DENIED without prejudice as premature.
Further, IT IS HEREBY RECOMMENDED that:
1. Plaintiff's application to proceed in forma pauperis, ECF No. 2, be DENIED; and
2. Plaintiff be directed to pay the $400 filing fee within thirty (30) days after an order adopting these findings and recommendations, and be informed that failure to do so will result in the dismissal of this action.
These findings and recommendations are submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) days after being served with these findings and recommendations, plaintiff may file written objections with the court. Such document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). DATED: July 29, 2020
/s/_________
ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE