Saladin Rushdan v. Jennifer Soares, et al.

Opinion

SALADIN RUSHDAN, No. 2:24-cv-01768-DAD-SCR (PC) Plaintiff, v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DENYING JENNIFER SOARES, et al., PLAINTIFF’S MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS Defendants. (Doc. Nos. 2, 8)

Plaintiff Saladin Rushdan is a state prisoner proceeding pro se in this civil rights action brought pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On March 11, 2025, the assigned magistrate judge issued findings and recommendations recommending that plaintiff’s motion for leave to proceed in forma pauperis be denied. (Doc. No. 8 at 3.) Specifically, the magistrate judge concluded that plaintiff had previously filed three actions that were dismissed as frivolous, malicious, or for failing to state a claim, and his complaint in this action does not include allegations demonstrating that he was under imminent danger of serious physical injury at the time of filing the complaint. (Id. at 1–2.) ///// The pending findings and recommendations were served on the parties and contained notice that any objections thereto were to be filed within twenty-one (21) days after service. (Id. at 3.) On March 31, 2025, plaintiff filed objections to the findings and recommendations. (Doc. No. 9.) In his objections, plaintiff challenges the validity of the cases cited as strikes in the pending findings and recommendations, specifically Rushdan v. Terhune, et al., No. 2:01-cv- 00364-LKK-GGH (E.D. Cal.), arguing that this case was merely filed in the wrong venue. (Id. at 1.) Plaintiff further contends that he daily faces imminent danger of serious physical injury due to him being denied parole, the subject of plaintiff’s complaint. (Id.) Plaintiff argues that his age and medical issues cause that danger to increase, and he refers the court to the number of assaults on inmates at plaintiff’s current institution of confinement. (Id.) Finally, plaintiff argues that he does not have a reliable source of income. (Id.) In Rushdan v. Terhune, et al., No. 2:01-cv-00364-LKK-GGH (E.D. Cal.), on May 3, 2001, the magistrate judge first ordered that plaintiff’s complaint be dismissed with leave to amend because plaintiff’s claim rested entirely on an allegation that he was subjected to abusive language, which failed to state a colorable claim for relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b). (Rushdan, Doc. No. 6 at 3.) On July 12, 2001, the magistrate judge later issued findings and recommendations recommending that the action be dismissed without prejudice due to plaintiff’s failure to file an amended complaint within the allotted time. (Rushdan, Doc. No. 7 at 1.) On September 14, 2001, the assigned district judge adopted in full the magistrate judge’s findings and recommendations, dismissing the action without prejudice. (Rushdan, Doc. No. 8 at 1–2.) “[W]hen (1) a district court dismisses a complaint on the ground that it fails to state a claim, (2) the court grants leave to amend, and (3) the plaintiff then fails to file an amended complaint, the dismissal counts as a strike under § 1915(g).” Harris v. Mangum, 863 F.3d 1133, 1143 (9th Cir. 2017). Therefore, Rushdan v. Terhune, et al., No. 2:01-cv-00364- LKK-GGH (E.D. Cal.) counts as a strike under § 1915(g). As for plaintiff’s argument that he faces imminent danger of serious physical injury, “[a]n extended prison sentence or denial of parole does not necessarily implicate an imminent danger of serious bodily harm as required under 28 U.S.C. § 1915(g).” Hill v. Shaffer, No. 3:24-cv-01131- JES-MSB, 2024 WL 4547020, at *3 (S.D. Cal. Oct. 22, 2024) (citation omitted). “The mere fact of plaintiff’s confinement is not sufficient to support a finding of imminent danger, and plaintiff has offered no specific allegations indicating that he was personally in any danger at the time the complaint was filed.” Luedtke v. Ciolli, No. 1:20-cv-00406-NONE-BAM (PC), 2021 WL 1103340, at *1 (E.D. Cal. Mar. 23, 2021). Plaintiff’s arguments regarding his age and medical issues and the unspecified number of assaults at plaintiff’s current location are conclusory, vague, and also insufficient to support a finding of imminent danger. Id. (“Plaintiff also argues in a generalized and conclusory fashion that because he is incarcerated and all prisons are violent and dangerous, plaintiff is in imminent danger of serious physical injury.”); see also Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir. 2003) (“Courts also deny leave to proceed IFP when a prisoner’s claims of imminent danger are conclusory or ridiculous.”). As for plaintiff’s argument that he does not have a reliable source of income, this does not constitute an exception to the PLRA’s three strikes provision. See 28 U.S.C. § 1915(g). In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a de novo review of the case. Having carefully reviewed the entire file, including plaintiff’s objections, the court concludes that the findings and recommendations are supported by the record and by proper analysis. Accordingly: 1. The findings and recommendations issued on March 11, 2025 (Doc. No. 8) are ADOPTED IN FULL; 2. Plaintiff’s motion to proceed in forma pauperis (Doc. No. 2) is DENIED; 3. Plaintiff is granted thirty (30) days after the date of service of this order in which to pay the $405 filing fee required to proceed with this action; and ///// ///// ///// ///// 4. Plaintiff is forewarned that his failure to pay the filing fee within the time provided will result in the dismissal of this action. ‘ Dated: _ November 3, 2025 Dal A. 2, sy ‘ UNITED STATES DISTRICT JUDGE