1 2 3 4 5 6 7 10 11 JUAN CARLOS CALDERON, No. 2:26-cv-0631 CSK P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 PEREZ BROTHERS, et al., 15 Defendants. 16 17 Plaintiff is a California prisoner proceeding pro se. This proceeding was referred to this 18 court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). Plaintiff seeks relief pursuant to 19 42 U.S.C. § 1983 and requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. 20 For the reasons stated below, the Court recommends that plaintiff’s motion to proceed in 21 forma pauperis be denied pursuant to 28 U.S.C. § 1915(g). It is also recommended that plaintiff 22 be ordered to pay the filing fee in full prior to proceeding any further with this action 24 The Prison Litigation Reform Act of 1995 (“PLRA”) permits a federal court to authorize 25 the commencement and prosecution of any suit without prepayment of fees by a person who 26 submits an affidavit demonstrating that the person is unable to pay such fees. However, 27 28 U.S.C. § 1915(g) states: 28 In no event shall a prisoner bring a civil action or appeal a judgment 1 in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any 2 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 3 fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 4 Id. “It is well-settled that, in determining a [Section] 1915(g) ‘strike,’ the reviewing court 5 looks to the dismissing court’s action and the reasons underlying it.” Knapp v. Hogan, 738 F.3d 6 1106, 1109 (9th Cir. 2013) (brackets added) (citation omitted). “[Section] 1915(g) should be 7 used to deny a prisoner’s in forma pauperis status only when, after careful evaluation of the 8 order dismissing an action, and other relevant information, the district court determines that the 9 action was dismissed because it was frivolous, malicious or failed to state a claim.” Andrews v. 10 King, 398 F.3d 1113, 1121 (9th Cir. 2006) (brackets added). “[W]hen a district court disposes 11 of an in forma pauperis complaint ‘on the grounds that [the claim] is frivolous, malicious, or 12 fails to state a claim upon which relief may be granted,’ such a complaint is ‘dismissed’ for 13 purposes of § 1915(g) even if the district court styles such dismissal as denial of the prisoner’s 14 application to file the action without prepayment of the full filing fee.” O’Neal v. Price, 531 15 F.3d 1146, 1153 (9th Cir. 2008). Dismissal also counts as a strike under § 1915(g) “when (1) a 16 district court dismisses a complaint on the ground that it fails to state a claim, (2) the court grants 17 leave to amend, and (3) the plaintiff then fails to file an amended complaint” regardless of 18 whether the case was dismissed with or without prejudice. Harris v. Mangum, 863 F.3d 1133, 19 1142-43 (9th Cir. 2017). Section 1915(g) requires that this Court consider prisoner actions 20 dismissed before, as well as after, the statute’s 1996 enactment. Tierney v. Kupers, 128 F.3d 21 1310, 1311-12 (9th Cir. 1997). 22 An inmate who accrues three strikes is precluded from proceeding in forma pauperis 23 unless he is “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). To 24 satisfy the exception, plaintiff must have alleged facts that demonstrate that plaintiff was “under 25 imminent danger of serious physical injury” at the time of filing the complaint. Andrews v. 26 Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007) (“[I]t is the circumstances at the time of the 27 filing of the complaint that matters for purposes of the ‘imminent danger’ exception to 28 1 § 1915(g).”). “[T]he imminent danger exception to the PLRA three-strikes provision requires a 2 nexus between the alleged imminent danger and the violations of law alleged in the complaint.” 3 Ray v. Lara, 31 F.4th 692, 695 (9th Cir. 2022). 5 Court records reveal that on October 24, 2024, plaintiff was declared a three-strikes 6 litigant in Calderon v. Covello, 2:24-cv-1309 DJC CKD P (E.D. Cal. Oct. 24, 2024). In that case, 7 the court determined that the following actions previously filed by plaintiff while he was 8 incarcerated constituted strikes: 9 1. Calderon v. Bonta, 2:23-cv-0212 KJM EFB P, dismissed March 26, 2024. 10 2. Calderon v. Bonta, 2:23-cv-1065 DJC DMC P, dismissed February 15, 2024. 11 3. Calderon v. Covello, 2:23-cv-1974 DJC DB P, dismissed April 1, 2024. 12 Calderon v. Covello, 2:24-cv-1309 DJC CKD P (ECF No. 7 at 2 (Sept. 4, 2024 findings and 13 recommendations)) (E.D. Cal.). Judgment is final in all three cases. 14 The Court takes judicial notice of the three lawsuits set forth above as well as the findings 15 of the court in Calderon v. Covello, 2:24-cv-1309 DJC CKD P.1 Each prior case was dismissed 16 well before the instant action was opened on December 10, 2025, and commenced by the filing of 17 plaintiff’s complaint on February 5, 2026, and none of the strikes have been overturned. Thus, 18 the Court finds that plaintiff is precluded from proceeding in forma pauperis unless he is “under 19 imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 21 In his complaint,2 plaintiff alleges that he was subjected to violent attacks in 2024 while 22 he was housed at Mule Creek State Prison. (ECF No. 5 at 4-5.) Plaintiff alleges he was labeled 23 with various names that put him in danger. (Id. at 4.) He also claims there was a conspiratorial 24 plot to murder him. (Id. at 8.) However, plaintiff confirms he arrived at R.J. Donovan on August 25
1 A court may take judicial notice of court records. See, e.g., Bennett v. Medtronic, Inc., 285 26 F.3d 801, 803 n.2 (9th Cir. 2002) (“[W]e may take notice of proceedings in other courts, both 27 within and without the federal judicial system, if those proceedings have a direct relation to matters at issue”) (internal quotation omitted). 28 2 Plaintiff also appends copies of “new” civil actions he will file “soon.” (ECF No. 5 at 9-30.) 1 20, 2025. (ECF No. 5 at 10.) Thus, plaintiff fails to demonstrate he was faced with “imminent 2 danger of serious physical injury” when this action was opened on December 10, 2025, or when 3 he filed his complaint on February 5, 2026, based on alleged incidents that took place at Mule 4 Creek State Prison in 2024.3 5 Absent facts showing plaintiff was under such imminent danger, plaintiff is not entitled to 6 an exception to the three strikes bar. 8 Because plaintiff must pay the court’s filing fee in full before he may proceed in this 9 action, plaintiff’s other motions are denied without prejudice to renewal once the filing fee is paid 10 in full. (ECF Nos. 7, 9.) 12 The Court finds that plaintiff failed to meet his burden under 28 U.S.C. § 1915(g).
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1 2 3 4 5 6 7 10 11 JUAN CARLOS CALDERON, No. 2:26-cv-0631 CSK P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 PEREZ BROTHERS, et al., 15 Defendants. 16 17 Plaintiff is a California prisoner proceeding pro se. This proceeding was referred to this 18 court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). Plaintiff seeks relief pursuant to 19 42 U.S.C. § 1983 and requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. 20 For the reasons stated below, the Court recommends that plaintiff’s motion to proceed in 21 forma pauperis be denied pursuant to 28 U.S.C. § 1915(g). It is also recommended that plaintiff 22 be ordered to pay the filing fee in full prior to proceeding any further with this action 24 The Prison Litigation Reform Act of 1995 (“PLRA”) permits a federal court to authorize 25 the commencement and prosecution of any suit without prepayment of fees by a person who 26 submits an affidavit demonstrating that the person is unable to pay such fees. However, 27 28 U.S.C. § 1915(g) states: 28 In no event shall a prisoner bring a civil action or appeal a judgment 1 in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any 2 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 3 fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 4 Id. “It is well-settled that, in determining a [Section] 1915(g) ‘strike,’ the reviewing court 5 looks to the dismissing court’s action and the reasons underlying it.” Knapp v. Hogan, 738 F.3d 6 1106, 1109 (9th Cir. 2013) (brackets added) (citation omitted). “[Section] 1915(g) should be 7 used to deny a prisoner’s in forma pauperis status only when, after careful evaluation of the 8 order dismissing an action, and other relevant information, the district court determines that the 9 action was dismissed because it was frivolous, malicious or failed to state a claim.” Andrews v. 10 King, 398 F.3d 1113, 1121 (9th Cir. 2006) (brackets added). “[W]hen a district court disposes 11 of an in forma pauperis complaint ‘on the grounds that [the claim] is frivolous, malicious, or 12 fails to state a claim upon which relief may be granted,’ such a complaint is ‘dismissed’ for 13 purposes of § 1915(g) even if the district court styles such dismissal as denial of the prisoner’s 14 application to file the action without prepayment of the full filing fee.” O’Neal v. Price, 531 15 F.3d 1146, 1153 (9th Cir. 2008). Dismissal also counts as a strike under § 1915(g) “when (1) a 16 district court dismisses a complaint on the ground that it fails to state a claim, (2) the court grants 17 leave to amend, and (3) the plaintiff then fails to file an amended complaint” regardless of 18 whether the case was dismissed with or without prejudice. Harris v. Mangum, 863 F.3d 1133, 19 1142-43 (9th Cir. 2017). Section 1915(g) requires that this Court consider prisoner actions 20 dismissed before, as well as after, the statute’s 1996 enactment. Tierney v. Kupers, 128 F.3d 21 1310, 1311-12 (9th Cir. 1997). 22 An inmate who accrues three strikes is precluded from proceeding in forma pauperis 23 unless he is “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). To 24 satisfy the exception, plaintiff must have alleged facts that demonstrate that plaintiff was “under 25 imminent danger of serious physical injury” at the time of filing the complaint. Andrews v. 26 Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007) (“[I]t is the circumstances at the time of the 27 filing of the complaint that matters for purposes of the ‘imminent danger’ exception to 28 1 § 1915(g).”). “[T]he imminent danger exception to the PLRA three-strikes provision requires a 2 nexus between the alleged imminent danger and the violations of law alleged in the complaint.” 3 Ray v. Lara, 31 F.4th 692, 695 (9th Cir. 2022). 5 Court records reveal that on October 24, 2024, plaintiff was declared a three-strikes 6 litigant in Calderon v. Covello, 2:24-cv-1309 DJC CKD P (E.D. Cal. Oct. 24, 2024). In that case, 7 the court determined that the following actions previously filed by plaintiff while he was 8 incarcerated constituted strikes: 9 1. Calderon v. Bonta, 2:23-cv-0212 KJM EFB P, dismissed March 26, 2024. 10 2. Calderon v. Bonta, 2:23-cv-1065 DJC DMC P, dismissed February 15, 2024. 11 3. Calderon v. Covello, 2:23-cv-1974 DJC DB P, dismissed April 1, 2024. 12 Calderon v. Covello, 2:24-cv-1309 DJC CKD P (ECF No. 7 at 2 (Sept. 4, 2024 findings and 13 recommendations)) (E.D. Cal.). Judgment is final in all three cases. 14 The Court takes judicial notice of the three lawsuits set forth above as well as the findings 15 of the court in Calderon v. Covello, 2:24-cv-1309 DJC CKD P.1 Each prior case was dismissed 16 well before the instant action was opened on December 10, 2025, and commenced by the filing of 17 plaintiff’s complaint on February 5, 2026, and none of the strikes have been overturned. Thus, 18 the Court finds that plaintiff is precluded from proceeding in forma pauperis unless he is “under 19 imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 21 In his complaint,2 plaintiff alleges that he was subjected to violent attacks in 2024 while 22 he was housed at Mule Creek State Prison. (ECF No. 5 at 4-5.) Plaintiff alleges he was labeled 23 with various names that put him in danger. (Id. at 4.) He also claims there was a conspiratorial 24 plot to murder him. (Id. at 8.) However, plaintiff confirms he arrived at R.J. Donovan on August 25
1 A court may take judicial notice of court records. See, e.g., Bennett v. Medtronic, Inc., 285 26 F.3d 801, 803 n.2 (9th Cir. 2002) (“[W]e may take notice of proceedings in other courts, both 27 within and without the federal judicial system, if those proceedings have a direct relation to matters at issue”) (internal quotation omitted). 28 2 Plaintiff also appends copies of “new” civil actions he will file “soon.” (ECF No. 5 at 9-30.) 1 20, 2025. (ECF No. 5 at 10.) Thus, plaintiff fails to demonstrate he was faced with “imminent 2 danger of serious physical injury” when this action was opened on December 10, 2025, or when 3 he filed his complaint on February 5, 2026, based on alleged incidents that took place at Mule 4 Creek State Prison in 2024.3 5 Absent facts showing plaintiff was under such imminent danger, plaintiff is not entitled to 6 an exception to the three strikes bar. 8 Because plaintiff must pay the court’s filing fee in full before he may proceed in this 9 action, plaintiff’s other motions are denied without prejudice to renewal once the filing fee is paid 10 in full. (ECF Nos. 7, 9.) 12 The Court finds that plaintiff failed to meet his burden under 28 U.S.C. § 1915(g). 13 Therefore, it is recommended that plaintiff’s application to proceed in forma pauperis be denied, 14 and plaintiff must submit the appropriate filing fee in order to proceed with this action. 15 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court assign a district 16 court judge to this case. 17 Further, IT IS RECOMMENDED that: 18 1. Plaintiff’s motion for leave to proceed in forma pauperis (ECF No. 6) be denied. 19 2. Plaintiff’s motions (ECF Nos. 7, 9) be denied without prejudice. 20 3. Plaintiff be ordered to pay the filing fee in full prior to proceeding any further with 21 this action in light of his status as a three-strikes litigant within the meaning of 22 28 U.S.C. § 1915(g). Such payment must be made within twenty-one days from the 23 date of any order adopting these findings and recommendations. Plaintiff’s failure to 24 comply with such order will result in a recommendation that this action be dismissed. 25
3 In an abundance of caution, this Court reviewed plaintiff’s motion referencing “imminent 26 danger.” (ECF No. 9.) This motion does not clearly identify a threat of imminent danger present 27 at the time plaintiff filed this action, again describing various incidents in 2024 at Mule Creek State Prison, and also including an allegation about the use of chemicals in the food, water, 28 clothes, mattresses and air system (id. at 7). ] These findings and recommendations are submitted to the United States District Judge 2 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 3 || after being served with these findings and recommendations, plaintiff may file written objections 4 || with the court and serve a copy on all parties. Such a document should be captioned 5 || “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that 6 || failure to file objections within the specified time may waive the right to appeal the District 7 || Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 8 9 | Dated: March 9, 2026 4 aA 10 Aan Spe | CHI SOO KIM i UNITED STATES MAGISTRATE JUDGE /W/eald0631.1915 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28