Maldonado v. Lizarraga et al.

Filing 8

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 1/14/16 RECOMMENDING that Plaintiffs application to proceed in forma pauperis (ECF No. 2 ) be denied; and this action be dismissed without prejudice to re-filing upon pre-payment of the $400 filing fee. Referred to Judge William B. Shubb; Objections to F&R due within 14 days.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BILLY RAE SHANEE MALDONADO,

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No. 2:15-cv-2436-WBS-EFB P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

JOE LIZARAGA, et al.,
Defendants.

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Plaintiff Billy Rae Shanee Maldonado is a state prisoner proceeding without counsel in an

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action brought under 42 U.S.C. § 1983. He seeks leave to proceed in forma pauperis. See 28

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U.S.C. § 1915(a). For the reasons explained below, the court finds that plaintiff has not

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demonstrated he is eligible to proceed in forma pauperis.

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A prisoner may not proceed in forma pauperis:

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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.

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28 U.S.C. § 1915(g). Court records reflect that on at least three prior occasions, plaintiff has

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brought actions while incarcerated that were dismissed as frivolous, malicious, or for failure to

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state a claim upon which relief may be granted. See (1) Maldonado v. Yates, No. 1:11-cv-017351

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LJO-GSA (E.D. Cal. June 13, 2013) (order dismissing action for failure to state a claim); (2)

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Maldonado v. Yates, 1:11-cv-01885-AWI-JLT (E.D. Cal. Jan. 17, 2014) (order dismissing action

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for failure to state a claim); (3) Maldonado v. Trimble, 1:11-cv-02160-LJO-DLB (E.D. Cal. Apr.

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19, 2013) (order dismissing action for failure to state a claim); (4) Maldonado v. Yates, No. 1:11-

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cv-02164-AWI-JLT (E.D. Cal. May 17, 2013) (order dismissing action for failure to state a

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claim); (5) Maldonado v. Yates, No. 1:12-cv-00871-LJO-DLB (E.D. Cal. Apr. 5, 2013) (order

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dismissing action for failure to state a claim); and (6) Maldonado v. Correctional Officer Ruth,

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1:12-cv-02015-AWI-DLB (E.D. Cal. Oct. 19, 2014) (order dismissing action for failure to state a

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claim).1

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The section 1915(g) exception applies if the complaint makes a plausible allegation that

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the prisoner faced “imminent danger of serious physical injury” at the time of filing. 28 U.S.C. §

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1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). For the exception to apply,

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the court must look to the conditions the “prisoner faced at the time the complaint was filed, not

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at some earlier or later time.” Andrews, 493 F.3d at 1053, 1056 (requiring that prisoner allege “an

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ongoing danger” to satisfy the imminency requirement). Courts need “not make an overly

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detailed inquiry into whether the allegations qualify for the exception.” Id. at 1055.

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In the complaint (ECF No. 1), plaintiff claims that he is being denied a Kosher Jewish

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diet. His allegations do not demonstrate that he suffered from an ongoing or imminent danger of

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serious physical injury at the time he filed his complaint. Thus, the imminent danger exception

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does not apply. Plaintiff’s application for leave to proceed in forma pauperis must therefore be

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denied pursuant to § 1915(g).

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Because plaintiff has not paid the filing fee and cannot proceed in forma pauperis, it is
hereby RECOMMENDED that

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1. Plaintiff’s application to proceed in forma pauperis (ECF No. 2) be denied; and
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In violation of Rule 11 of the Federal Rules of Civil Procedure, plaintiff falsely alleges
in the complaint that he has not filed any other lawsuits while a prisoner. ECF No. 1, § I.A; Fed.
R. Civ. P. 11(b)(3).
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2. This action be dismissed without prejudice to re-filing upon pre-payment of the $400
filing fee.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: January 14, 2016.

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