United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN MAGISTHRATE JUDGE
is a state prisoner, proceeding without counsel, with a civil
rights action pursuant to 42 U.S.C. § 1983. For the
following reasons, the undersigned recommends that
plaintiff’s application to proceed in forma pauperis be
28 U.S.C. § 1915 generally permits any court of the
United States to authorize the commencement and prosecution
of any suit without prepayment of fees by a person who
submits an affidavit indicating that the person is unable to
pay such fees. However,
[i]n 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.
28 U.S.C. § 1915(g).
has had three prior actions dismissed which qualify as
strikes under 28 U.S.C. § 1915(g): 1) Sierra v.
Grannis, 1: 08-cv-0887 RTB CAB (E.D. Cal.), dismissed as
frivolous on February 21, 2009 (ECF No. 18); 2) Sierra v.
United States District Court, 1: 10-cv-1019 SKO (E.D.
Cal.), dismissed for failing to state any claims on February
8, 2011 (ECF No. 28); 3) Sierra v. Moon,
1:11-cv-1214 LJO MJS (PC) (E.D. Cal.), dismissed as frivolous
and for failing to state a claim on July 3, 2012 (ECF No.
imminent danger exception to 28 U.S.C. § 1915(g) applies
only if it is clear that the danger existed when the
complaint was filed. Andrews v. Cervantes, 493 F.3d
1047, 1053 (9th Cir. 2007). The danger must be real and
proximate, Ciarpaglini v. Saini, 352 F.3d 328, 330
(7th Cir. 2003), and must be ongoing. Andrews, 493
F.3d at 1056. Allegations of imminent danger that are overtly
speculative or fanciful may be rejected. Id. at 1057
n.11. For the following reasons, the undersigned finds that
plaintiff has not met the imminent injury exception.
complaint is difficult to understand. However, it appears
that plaintiff alleges that prison officials have failed to
treat him for lower back problems. Plaintiff appears to
allege that he suffered these back problems as long ago as
1985. Plaintiff raised similar, if not the same claims, in
Sierra v. Moon, 1: 11-cv-1214 LJO MJS (PC). In that
action, plaintiff alleged that defendants planned to move him
from an acute care hospital housing unit to a housing unit
with a lower level of care and failed to diagnose his alleged
paraplegia as other than a faked disability. (See 1:
11-cv-1214 LJO MJS (PC) at ECF No. 16 at 2.) In 1:11-cv-1214
LJO MJS (PC), plaintiff also claimed that he suffered from
paraplegia from injuries, possibly sustained in 1982, leaving
him with a painful nerve disorder unnoticed by defendants who
wrongly accused him of having an acute mental disorder.
(Id. at 3.)
district court in 1: 11-cv-1214 LJO MJS (PC), found that
plaintiff’s claims alleging an untreated back injury
were frivolous because they were combined with patently
frivolous claims alleging plaintiff’s legal ownership
of Nike business worldwide, etc. (Id. at 3-5.) While
plaintiffs instant complaint does not include other patently
frivolous claims, the fact that plaintiff raised the same
claims regarding his alleged back problems in 1:11-cv-1214
LJO MJS (PC) indicates that plaintiff is not in imminent
danger of serious physical injury. For these reasons, the
undersigned finds that plaintiff has not met the imminent
danger exception to 28 U.S.C. § 1915(g).
IT IS HEREBY RECOMMENDED that plaintiffs application to
proceed in forma pauperis (ECF No. 15) be denied; and
plaintiff be ordered to pay the filing fee.
findings and recommendations are submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of 28 U.S.C. § 636(b)(1). Within fourteen
days after being served with these findings and
recommendations, plaintiff may file written objections with
the court and serve a copy on all parties. Such a 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).
 In his application to proceed in forma
pauperis filed in the instant action, plaintiff alleges that
he owns several professional sports teams including the San
Francisco Giants, the Oakland Raiders, the San Jose Sharks
and the Sacramento Kings. (ECF No. 15 at 2.) Because these
claims are clearly frivolous, they are disregarded. In any
event, the Certificate of Funds Form certified by prison
officials in support of plaintiff s application to ...