United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF'S
MOTION TO PROCEED IN FORMA PAUPERIS AND DISMISS ACTION
WITHOUT PREJUDICE (DOC. 2) 14-DAY DEADLINE
K. OBERTO UNITED STATES MAGISTRATE JUDGE
of Court to Assign a District Judge Plaintiff Edward Vincent
Ray, Jr., seeks to proceed in forma pauperis
(“IFP”) pursuant to 28 U.S.C. section 1915. (Doc.
2.) Because Plaintiff has three “strikes” under
section 1915(g) and fails to show that he is in imminent
danger of serious physical injury, the Court recommends that
Plaintiff's motion be DENIED.
THREE-STRIKES PROVISION OF 28 U.S.C. § 1915
U.S.C. section 1915 governs proceedings in forma
pauperis. The statute provides that “[i]n no event
shall a prisoner bring a civil action … 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).
Court takes judicial notice of three of Plaintiff's prior
lawsuits that were dismissed on the grounds that they were
frivolous, malicious, or failed to state a
claim: (1) Ray v. Bruiniers, Case No.
3:10-cv-00824-SI (N.D. Cal.) (dismissed on September 1, 2010,
as frivolous and for failure to state a claim); (2) Ray
v. Friedlander, Case No. 3:10-cv-01107-SI (N.D. Cal)
(dismissed on September 1, 2010, as frivolous and for failure
to state a claim); and (3) Ray v. Schoo, et al.,
Case No. 5:10-cv-00942-VAP-PJW (C.D. Cal.) (dismissed on
January 2, 2014, for failure to state a claim). Each of these
cases was dismissed prior to Plaintiff initiating the current
action on November 1, 2019. Plaintiff is therefore precluded
from proceeding IFP in this action unless, at the time he
filed his complaint, he was under imminent danger of serious
physical injury. See Andrews v. Cervantes, 493 F.3d
1047, 1052-53 (9th Cir. 2007).
complaint, Plaintiff alleges that he is “being poisoned
… (slowly) … by the contaminated drinking
water; the water he must shower in; the meals prepared in the
water; [and] his clothes … being washed in the
water.” (Doc. 1 at 4.) He claims that he is in
“‘imminent danger of serious physical
injury,' due to the ‘lead, and/or coliform
[b]acteria' at the [c]orrectional [i]nstitution (CCI) he
is currently confined at.” (Id.).
Court finds that Plaintiff's allegations do not meet the
imminent danger exception. As an initial matter, Plaintiff
provides no basis for the allegation that the prison's
water supply is contaminated or that he is being poisoned.
Second, Plaintiff does not state how he has been placed in
imminent danger of serious physical injury.
Plaintiff cites Helling v. McKinney, 509 U.S. 25
(1993), to support his argument that the imminent danger
exception applies here. (Doc. 1 at 4.) However, the
Helling Court held that the plaintiff may pursue an
Eighth Amendment claim by alleging that the defendants
exposed him to tobacco smoke, which posed “an
unreasonable risk of serious damage to his future
health.” Helling, 509 U.S. at 35. The standard
for IFP status, though, is not whether a plaintiff's
future health may be at risk, but whether he is in
imminent danger of serious injury. Plaintiff does
not make that showing.
on the foregoing, the Court RECOMMENDS that:
Plaintiff's motion to proceed in forma pauperis,
(Doc. 2), be DENIED; and, 2. This action be
DISMISSED without prejudice to refiling upon
prepayment of the filing fee.
Clerk of the Court is DIRECTED to randomly
assign a United States District Judge.
Findings and Recommendations will be submitted to the United
States District Judge assigned to this case, pursuant to the
provisions of 28 U.S.C. § 636(b)(1). Within
14 days of the date of service of
these Findings and Recommendations, Plaintiff may file
written objections with the Court. The document should be
captioned, “Objections to Magistrate Judge's
Findings and Recommendations.” Plaintiff's failure
to file objections within the specified time may result in
waiver of his ...