Juan Calderon v. M. Blaisdell, J. Gaxiola, I. Sanchez, H.E. Mosely
- Proceeding
- district
- Area
- civil
- Panel
- Jinsook Ohta (author)
Analysis
The court considered a motion to proceed in forma pauperis filed by a pro se prisoner with multiple prior dismissals. The court denied the motion for failure to plead imminent danger and dismissed the action for failure to pay the filing fee.
| What the court decided | The model |
|---|---|
Denial of Motion to Proceed In Forma Pauperis“Accordingly, the Court DENIES Plaintiff's IFP Motion [Dkt. 2] pursuant to 28 U.S.C. § 1915(g)” | agree with court The court correctly applied the Prison Litigation Reform Act (PLRA) three-strikes rule. The order recites that the plaintiff has 'many prior strikes' and cites a sister case taking judicial notice of this fact. The court correctly identified that the plaintiff failed to meet the exception for 'imminent danger of serious physical injury' because his allegations regarding an undiagnosed tumor were general and lacked specific facts showing the injury was serious or imminent. This aligns with Ninth Circuit precedent requiring specific factual allegations for the imminent danger exception. |
Dismissal of Civil Action for Failure to Pay Filing Fee“and DISMISSES this civil action for failure to pay the filing fee required by 28 U.S.C. §1914(a).” | agree with court Dismissal for failure to pay the filing fee is a standard procedural consequence when a prisoner's IFP motion is denied under 28 U.S.C. § 1915(g). The court correctly ordered the dismissal and directed the clerk to close the case. |
The order itself: sound — The order is procedurally and substantively sound. It correctly identifies the applicable statutory bar (28 U.S.C. § 1915(g)), establishes the factual predicate (three strikes) through judicial notice of a related case, and applies the correct legal standard for the 'imminent danger' exception. The court properly found that the plaintiff's general allegations of an undiagnosed tumor did not meet the requirement for specific factual allegations of imminent serious physical injury. The dismissal for failure to pay the fee is the correct procedural outcome.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JUAN CALDERON, Case No.: 3:26-cv-1358-JO-JAC CDCR #H-75038, 12 ORDER: (1) DENYING MOTION TO Plaintiff, 13 PROCEED IN FORMA PAUPERIS vs. AS BARRED BY 28 U.S.C. § 1915(g) 14 AND 15 M. BLAISDELL, J. GAXIOLA, I. (2) DISMISSING CIVIL ACTION 16 SANCHEZ, H.E. MOSELY, FOR FAILURE TO PAY FILING 17 Defendants. FEE REQUIRED BY 28 U.S.C. § 1914(a) 18 19 20 Plaintiff Juan Calderon, a state prisoner proceeding pro se, has filed this civil rights 21 action pursuant to 42 U.S.C. § 1983, along with a motion to proceed in forma pauperis 22 (“IFP”). See Dkts. 1, 2. A prisoner with three or more “strikes,” i.e., prior civil cases or 23 appeals dismissed as frivolous, malicious, or for failing to state a claim, “cannot proceed 24 IFP” absent a plausible allegation of “imminent danger of serious physical injury” at the 25 time of filing. Andrews. v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005) (quoting 28 26 U.S.C. § 1915(g)); see also Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). 27 Here, Calderon’s many prior strikes disqualify him from proceeding IFP unless he 28 can plead that he is in imminent danger. See Calderon v. CDCR Directors, et al., Case No. 1 |} 26-cv-1368-AJB-DEB, 2026 WL 1215036, at *2 (S.D. Cal. May 4, 2026) (taking judicial 2 ||notice of Calderon’s numerous prior strikes disqualifying him from proceeding IFP). 3 || Calderon pleads that he now has a tumor growing inside him—long undetected because he 4 ||has been denied a colonoscopy for more than twenty years—but he does not provide any 5 regarding whether this tumor is dangerous or benign nor whether it presents an 6 |{imminent risk to his health. Dkt. 1 at 4; see Martin v. Shelton, 319 F.3d 1048, 1050 (8th 7 || Cir. 2003) (an inmate must provide “specific fact allegations of ongoing serious physical 8 injury, or of a pattern of misconduct evidencing the likelihood of imminent serious physical 9 || injury”). Because these general allegations of possible medical harm do not suffice to show 10 ||he faces an imminent danger of serious physical harm, he may not proceed IFP. See 11 || Cervantes, 493 F.3d at 1057, fn. 11. 12 Accordingly, the Court DENIES Plaintiff's IFP Motion [Dkt. 2] pursuant to 28 13 |/U.S.C. § 1915(g) and DISMISSES this civil action for failure to pay the filing fee required 14 || by 28 U.S.C. §1914(a). The Court DIRECTS the Clerk of the Court to close the case. 15 16 IT IS SO ORDERED.
18 || Dated: June 30, 2026 —~ - 19 Ohta 20 United States District Judge 21 22 23 24 25 26 27 28 2