(PC) Azevedo v. Nelson et al

Filing 10

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 1/6/2025 RECOMMENDING plaintiff's 2 request for leave to proceed ifp be denied. Plaintiff be ordered to pay the entire $405 in required fees within 30 days or face dismissal of the case. Referred to Judge Dale A. Drozd. Objections to F&R due within 14 days. (Deputy Clerk KLY)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ALEX LEONARD AZEVEDO,

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No. 2:24-cv-2995 DAD AC P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

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DAVID RICK NELSON, et al.,

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Defendants.

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Plaintiff is a state inmate proceeding without an attorney in a civil rights action pursuant

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to 42 U.S.C. § 1983. This proceeding was referred to the undersigned by Local Rule 302

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pursuant to 28 U.S.C. § 636(b)(1).

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Plaintiff has requested leave to proceed in forma pauperis. ECF No. 2. However, the
Prison Litigation Reform Act of 1995 (“PRLA”) provides that:
In 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.

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28 U.S.C. § 1915(g). The plain language of the statute makes clear that a prisoner is precluded

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from bringing a civil action or an appeal in forma pauperis if the prisoner has brought three
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frivolous actions and/or appeals (or any combination thereof totaling three). Rodriguez v. Cook,

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169 F.3d 1176, 1178 (9th Cir. 1999). “[Section] 1915(g) should be used to deny a prisoner’s [in

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forma pauperis] status only when, after careful evaluation of the order dismissing an action, and

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other relevant information, the district court determines that the action was dismissed because it

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was frivolous, malicious or failed to state a claim.” Andrews v. King, 398 F.3d 1113, 1121 (9th

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Cir. 2005).

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On November 29, 2018, this court determined in another case that plaintiff has “struck

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out” for purposes of 28 U.S.C. § 1915(g). Azevedo v. Smith, 2:18-cv-2818 TLN AC P, ECF No.

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7. Judgement was entered and plaintiff did not appeal. Accordingly, this court finds that plaintiff

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is precluded from proceeding in forma pauperis unless he is “under imminent danger of serious

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physical injury.” 28 U.S.C. § 1915(g).

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To satisfy the imminent danger exception, plaintiff must have alleged facts that

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demonstrate that he was “under imminent danger of serious physical injury” at the time of filing

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the complaint. Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007) (“[I]t is the

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circumstances at the time of the filing of the complaint that matters for purposes of the ‘imminent

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danger’ exception to § 1915(g).”). “[T]he imminent danger exception to the PLRA three-strikes

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provision requires a nexus between the alleged imminent danger and the violations of law alleged

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in the complaint.” Ray v. Lara, 31 F.4th 692, 695 (9th Cir. 2022).

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The complaint filed October 31, 2024, alleges that in 2018, defendant Nelson was

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appointed as plaintiff’s counsel in his criminal proceedings and that defendant Nelson failed to do

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what as plaintiff asked, made slanderous remarks about plaintiff, and admitted to plaintiff’s guilt

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without his consent. ECF No. 1 at 3-5. Plaintiff further alleges that when he appealed his

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sentence, defendant Smith was appointed as his counsel and he accessed plaintiff’s confidential

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records without plaintiff’s consent. Id. at 6. Lastly, plaintiff alleges that defendant Walton, the

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court reporter, altered his statements in the court transcript. Id. at 7. Because these allegations do

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not demonstrate an imminent risk of serious physical injury at the time of filing, the undersigned

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will recommend that plaintiff’s request for leave to proceed in forma pauperis be denied and

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plaintiff be required to pay the filing fee in full or have the complaint dismissed.
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IT IS HEREBY RECOMMENDED that:

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

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2. Plaintiff be ordered to pay the entire $405 in required fees within thirty days or face

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dismissal of the case.

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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, plaintiff may file written objections

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with the court. The document should be captioned “Objections to Magistrate Judge’s Findings

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

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time waives the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th

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Cir. 1991).

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DATED: January 6, 2025

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