United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se with a civil rights
action pursuant to 42 U.S.C. § 1983.
Three Strikes Analysis
seeks leave to proceed in forma pauperis under 28 U.S.C.
§ 1915(a). ECF No. 5. The Prison Litigation Reform Act
of 1995 (PLRA) 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
[i]n no event shall a prisoner bring a civil action or appeal
a judgement in a civil action or proceeding under this
section if the prisoner has, on 3 or more 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). The plain language of the statute
makes clear that a prisoner is precluded from bringing a
civil action or an appeal in forma pauperis if the prisoner
has brought three frivolous actions and/or appeals (or any
combination thereof totaling three). Rodriguez v.
Cook, 169 F.3d 1176, 1178 (9th Cir. 1999).
“[Section] 1915(g) should be used to deny a
prisoner's [in forma pauperis] status only when, after
careful evaluation of the order dismissing an action, and
other relevant information, the district court determines
that the action was dismissed because it was frivolous,
malicious or failed to state a claim.” Andrews v.
King, 398 F.3d 1113, 1121 (9th Cir. 2005). “[W]hen
a district court disposes of an in forma pauperis complaint
‘on the grounds that [the claim] is frivolous,
malicious, or fails to state a claim upon which relief may be
granted,' such a complaint is ‘dismissed' for
purposes of § 1915(g) even if the district court styles
such dismissal as denial of the prisoner's application to
file the action without prepayment of the full filing
fee.” O'Neal v. Price, 531 F.3d 1146, 1153
(9th Cir. 2008) (second alteration in original).
of other cases filed by plaintiff has led to the
identification of at least five civil actions or appeals
brought by plaintiff that qualify as strikes. The court takes
judicial notice of the following lawsuits filed by
Balzarini v. Hirsch, E.D. Cal. No. 1:00-cv-6736 OWW
NEW (case dismissed for failure to state a claim on March 28,
Balzarini v. Schwarzenegger, N.D. Cal. No.
3:07-cv-2800 MHP (case dismissed for failure to state a claim
on November 19, 2010);
Balzarini v. Gooright, N.D. Cal. No. 3:09-cv-1796
MHP (case dismissed for failure to state a claim on October
Balzarini v. Cambria, 9th Cir. 05-15643 (affirmed
district court's revocation of in forma pauperis status
because the appeal was not taken in good faith, dismissed for
failure to pay the filing fee on August 17,
Balzarini v. Ulit, 9th Cir. No. 15-16530 (appeal
found to be frivolous, dismissed for failure to pay the
filing fee on February 25, 2016).
the preceding cases were dismissed well in advance of the
October 8, 2019 filing of the instant action,  and none of the
strikes have been overturned. Therefore, this court finds
that plaintiff is precluded from proceeding in forma pauperis
unless he is “under imminent danger of serious physical
injury.” 28 U.S.C. § 1915(g). To satisfy the
exception, plaintiff must have alleged facts that demonstrate
that he was “under imminent danger of serious physical
injury” at the time of filing the complaint.
Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir.
2007) (“[I]t is the circumstances at the time of the
filing of the complaint that matters for purposes of the
‘imminent danger' exception to §
1915(g).”); see also, Abdul-Akbar v.
McKelvie, 239 F.3d 307, 312-14 (3rd Cir. 2001);
Medberry v. Butler, 185 F.3d 1189, 1192-93 (11th
Cir. 1999); Ashley v. Dilworth, 147 F.3d 715, 717
(8th Cir. 1998); Banos v. O'Guin, 144 F.3d 883,
885 (5th Cir. 1998).
complaint alleges that staff at Mule Creek State Prison
retaliated against plaintiff in various ways, such as
confiscating his property and writing him up for rules
violations, from September 2017 to an unspecified date. ECF
No. 1 at 5-18. The complaint was not filed until October 8,
2019, at which point plaintiff was housed at the California
Institution for Men. Id. at 1, 24. Accordingly,
these allegations do not demonstrate an imminent risk of
serious physical injury at the time of filing and ...