Opinion
1:21-cv-01760-JLT-BAK-HBK (PC)
01-25-2022
ANTONIO LUIS WILLIAMS, Plaintiff, v. RAMADAN, et al., Defendants.
ORDER WITHDRAWING FINDINGS AND RECOMMENDATIONS, DENYING PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS, AND DISMISSING ACTION WITHOUT PREJUDICE (DOCS. 2, 5)
Clerk of Court to close the case.
Antonio Luis Williams is a state prisoner proceeding pro se in this civil rights action under 42 U.S.C. § 1983. This matter was referred to the assigned magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
At the time, the undersigned was the assigned magistrate judge.
On December 14, 2021, the Court issued findings and recommendations to deny Plaintiff's motion to proceed in forma pauperis (IFP). (Doc. 5.) The Court took judicial notice of three cases:
(1) Williams v. Wunderlich, Case No. 06-cv-1097 OWW DLB (E.D. Cal. Oct. 5, 2006);
(2) Williams v. Hagar, Case No. 04-CV-2543 CW (PR) (N.D. Cal. Nov. 10, 2004); and
(3) Williams v. McGrath, Case No. 04-CV-0782-CW (PR) (N.D. Cal. June 25, 2004).
Each of these cases was dismissed for failure to state a claim and constituted a “strike” under 28 U.S.C. § 1915(g). The Court further determined that Plaintiffs allegations in the complaint did not show that Plaintiff was in imminent danger of serious physical injury at the time that he filed the complaint.
Plaintiff filed untimely objections to the findings and recommendations. (Doc. 7.) Plaintiff argues that the Court did not read or screen the complaint or liberally construe the complaint as true. Plaintiff argues that the three strikes provision does not apply when a prisoner is in imminent danger of serious physical injury and that future injury is enough to invoke the imminent danger exception. (Id. at 2.) Contrary to this assertion, the danger must be real, present, and/or ongoing. See Cervantes, 493 F.3d at 1055. More significantly, Plaintiff has failed to demonstrate that the imminent danger exception applies and that he should be allowed to proceed IFP. Accordingly, the Court ORDERS:
1. The findings and recommendations issued on December 14, 2021, (Doc. 5), are WITHDRAWN ;
The findings and recommendations are withdrawn due to the elevation of the undersigned to Article III status and the reassignment of the case to the undersigned in the new role. (See Doc. 9.)
2. Plaintiffs motion to proceed in forma pauperis, (Doc. 2), is DENIED; and
3. This action is DISMISSED WITHOUT PREJUDICE with leave to refile upon prepayment of the filing fee.
IT IS SO ORDERED. 3