(PC) Wolinski v. Moeckly

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KRZYSZTOF F. WOLINSKI, Case No. 2:25-cv-1202-JDP (P) 12 Plaintiff, 13 v. ORDER; FINDINGS AND RECOMMENDATIONS 14 J. MOECKLY, et al.,

15 Defendants. 16 17 18 Plaintiff has filed a complaint, ECF No. 1, and a request to proceed in forma pauperis 19 (“IFP”), ECF No. 2.1 However, plaintiff is a “Three-Striker” within the meaning of 28 U.S.C. 20 § 1915(g). See Wolinski v. Allison, No. 2:22-cv-0451-KJM-EFB (E.D. Cal. July 15, 2022) 21 (recognizing plaintiff as a “three-striker” within in the meaning of 28 U.S.C. § 1915(g)). 22 The court takes judicial notice of the following cases constituting strikes: (1) Wolinski v. 23 Los Angeles County Superior Court, No. 2:12-cv-6775-UA-MRW (C.D. Cal. Aug. 14, 2012) 24 (denying IFP on the grounds that the complaint failed to state a claim upon which relief could be 25 granted); (2) Wolinski v. Court of Appeal Second Appellate District, No. 2:12-cv-6902-UA-MRW 26

27 1 Plaintiff also filed a motion for extension of time to file his certified trust account statement. ECF No. 3. Since filing the motion, plaintiff has filed his account statement. ECF 28 No. 5. As such, I will deny his motion as moot. 1 (C.D. Cal. Aug. 24, 2012) (denying IFP on the grounds that complaint failed to state a claim upon 2 which relief could be granted); (3) Wolinski v. Court of Appeal Second Appellate District, No. 12- 3 56817 (9th Cir. Feb. 29, 2013) (finding that plaintiff’s appeal was frivolous and denying IFP); 4 (4) Wolinski v. Shaffer, No. 2:14-cv-2492-MCE-EFB (E.D. Cal. Aug. 12, 2015) (dismissing 5 action for failure to state a claim upon which relief could be granted); and (5) Wolinski v. Diaz, 6 No. 2:16-cv-09566-JFW-MRW (C.D. Cal. Jan. 26, 2017) (dismissing action for failure to state a 7 claim upon which relief could be granted). 8 A “three-striker” plaintiff may be afforded an opportunity to proceed in forma pauperis 9 under section 1915(g) if he alleges that he was in imminent danger at the time he filed the 10 complaint. See 28 U.S.C. § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1052-53 (9th Cir. 11 2007). The court must determine if the potential harm amounts to “serious physical injury” and 12 whether the threat is “imminent.” Cervantes, 493 F.3d at 1055-56. A prisoner fails to meet the 13 exception where claims of imminent danger are conclusory. Id. at 1057 n.11. Section 14 § 1915(g)’s “imminent danger” exception cannot be triggered solely by complaints of past harm 15 or generalized fears of potential harm. See id. at 1053 (“The exception’s use of the present tense, 16 combined with its concern only with the initial act of ‘bring[ing]’ the lawsuit, indicates to us that 17 the exception applies if the danger existed at the time the prisoner filed the complaint.”). 18 Plaintiff brings his action against fourteen named defendants, alleging violations of 19 federal and state law that occurred between January and August 2024. See ECF No. 1 at 2-12, 17, 20 19. Plaintiff alleges that during this time, defendants retaliated against him for filing grievances 21 and interfered with his rights under the Americans with Disabilities Act. Id. at 12-13. He also 22 alleges that he suffered a sexual battery and that defendants continued to retaliate against him 23 when he reported it. Id. at 14-15. He alleges that defendants interfered with his ability to access 24 the courts and law library, and that he has dealt with inadequate medical care. Id. at 16-21. 25 Plaintiff’s allegations are insufficient to show that he faced imminent danger of physical 26 injury at the time when he filed the complaint. Plaintiff has not alleged any facts demonstrating 27 that he is presently being subjected to “serious physical injury.” See Cervantes, 493 F.3d at 1055- 28 56. As plaintiff’s allegations show, his complaint relates to past harms, which cannot trigger 1 | § 1915(g)’s “imminent danger” exception. See id. at 1053. 2 Plaintiffs application for leave to proceed in forma pauperis must therefore be denied 3 | pursuant to § 1915(g). Plaintiff must submit the appropriate filing fee in to proceed with this 4 | action. 5 Accordingly, it is ORDERED that: 6 1. The Clerk of Court is directed to assign a district judge to this action. 7 2. Plaintiffs motion for an extension of time to file his certified trust account statement, 8 | ECF No. 3, is DENIED as moot. 9 It is also RECOMMENDED that plaintiff's application to proceed in forma pauperis, 10 | ECF No. 2, be DENIED and plaintiff be directed to tender the filing fee within thirty days of any 11 || order adopting these recommendations. 12 These findings and recommendations are submitted to the United States District Judge 13 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days of 14 | service of these findings and recommendations, any party may file written objections with the 15 | court and serve a copy on all parties. Any such document should be captioned “Objections to 16 | Magistrate Judge’s Findings and Recommendations,” and any response shall be served and filed 17 | within fourteen days of service of the objections. The parties are advised that failure to file 18 | objections within the specified time may waive the right to appeal the District Court’s order. See 19 | Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 20 | 1991). 21 IT IS SO ORDERED. 23 ( q oy — Dated: _ May 21, 2025 q——— 24 JEREMY D,. PETERSON UNITED STATES MAGISTRATE JUDGE

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