(PC) Rushdan v. Soares, et al.,

Filing 8

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Sean C. Riordan on 3/10/2025 ORDERING the Clerk to randomly assign this mater to a district judge and RECOMMENDING plaintiff's 2 request for leave to proceed in forma pauper is be denied, plaintiff be granted 30 days to pay the $405.00 filing fee for this action, and failure to pay the filing fee within the time provided will result in the dismissal of this action. Assigned and referred to Judge Dale A. Drozd. Objections to F&R due within 21 days. (Deputy Clerk KLY)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

FOR THE EASTERN DISTRICT OF CALIFORNIA

9
10
11

SALADIN RUSHDAN AKA
ROBERT STANLEY WOODS,
Plaintiff,

12
13
14

v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

JENNIFER SOARES, et al.,
Defendants.

15
16

No. 2:24-cv-1768-SCR-P

Plaintiff is a state prisoner proceeding without an attorney in this civil rights action filed

17

pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302

18

pursuant to 28 U.S.C. § 636(b)(1).

19

I.

20

Plaintiff has requested leave to proceed in forma pauperis. Title 28 U.S.C. § 1915(g)

21
22
23
24
25

In Forma Pauperis Statute

reads as follows:
In no event shall a prisoner bring a civil action . . . [in forma pauperis]
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.

26

This “three strikes rule” was part of “a variety of reforms designed to filter out the bad claims

27

[filed by prisoners] and facilitate consideration of the good.” Coleman v. Tollefson, 575 U.S. 532

28

(2015) (quoting Jones v. Bock, 549 U.S. 199, 204 (2007)).
1

1

II.

2

A review of cases plaintiff previously filed in this court shows that at least three were

3

Prior Cases Counting as Strikes

dismissed for failure to state a claim.1

4

A. Rushdan v. Terhune, et al., No. 2:01-cv-00364-LKK-GGH (E.D. Cal.)

5

After dismissing the original complaint for failing to state a claim and granting plaintiff

6

leave to amend, this case was eventually dismissed once plaintiff failed to file an amended

7

complaint. “[W]hen (1) a district court dismisses a complaint on the ground that it fails to state a

8

claim, (2) the court grants leave to amend, and (3) the plaintiff then fails to file an amended

9

complaint, the dismissal counts as a strike under § 1915(g).” Harris v. Mangum, 863 F.3d 1133,

10

1143 (9th Cir. 2017). Thus, the court finds that this prior action constitutes a strike within the

11

meaning of 28 U.S.C. § 1915(g).

12

B. Rushdan v. Ramirez-Palmer, et al., No. 2:02-cv-00524-DFL-DAD (E.D. Cal.)

13

The court dismissed this case without prejudice for failing to state a claim and thus

14

constitutes a second strike.

15

C. Rushdan v. Gear, et al., No. 1:16-cv-01017-LJO-BAM (E.D. Cal.)

16

On June 12, 2018, this case was dismissed with prejudice for failing to state a cognizable

17

claim for relief. As a result, the court concludes that it constitutes plaintiff’s third strike. 28

18

U.S.C. § 1915(g).

19

Based on the court’s review of these prior cases, plaintiff may only proceed in forma

20

pauperis if he plausibly alleges that he was faced with imminent danger of serious physical injury

21

at the time he filed the complaint. See Williams v. Paramo, 775 F.3d 1182, 1189 (9th Cir. 2015);

22

Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). In this case, there is no allegation by

23

plaintiff that he is under imminent danger of serious physical injury at the time that he filed the

24

complaint. Nor could he plausibly do so based on his claims that are based on the use of false

25

information to deny him parole. ECF No. 1.

26
27
28

1

The court may take judicial notice of court filings. See Reyn’s Pasta Bella, LLC v. Visa, 442
F.3d 741, 746 n.6 (9th Cir. 2006) (“We may take judicial notice of court filings and other matters
of public record.”); see also Fed. R. Evid. 201.
2

1

In light of the foregoing, the undersigned recommends denying plaintiff’s request for

2

leave to proceed in forma pauperis. It is further recommended that plaintiff be granted thirty days

3

in which to pay the full filing fee for this action.

4

III.

5

Since plaintiff is representing himself in this case, the court wants to make sure that the

6

words of this order are understood. The following information is meant to explain this order in

7

plain English and is not intended as legal advice.

Plain Language Summary for Party Proceeding Without a Lawyer

8

In deciding whether to allow you to proceed without paying the filing fee, the court has

9

reviewed the prior cases that you filed. Three of these prior cases count as “strikes” and there is

10

no showing that you were in imminent danger of serious physical injury at the time you filed this

11

case. So it is recommended that you be required to pay the whole filing fee at one time if you

12

want to proceed with this case.

13

If you disagree with this recommendation, you have 21 days to explain why it is not

14

correct. Label your explanation as “Objections to Magistrate Judge’s Findings and

15

Recommendations.” The final decision will be made by the district judge assigned to your case.

16
17

Accordingly, IT IS HEREBY ORDERED that the Clerk of Court randomly assign this
matter to a district judge.

18

IT IS FURTHER RECOMMENDED that:

19

1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) be denied.

20

2. Plaintiff be granted thirty days in which to pay the $405 filing fee for this action.

21

3. Failure to pay the filing fee within the time provided will result in the dismissal of this

22

action.

23

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

24

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

25

after being served with these findings and recommendations, plaintiff may file written objections

26

with the court. Such a document should be captioned “Objections to Magistrate Judges Findings

27

and Recommendations.” Plaintiff is advised that failure to file objections within the specified

28

////
3

1

time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153

2

(9th Cir. 1991).

3

DATED: March 10, 2025

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4