Unreported / Non-Citable
Background
A state prisoner proceeding pro se filed a civil rights action under 42 U.S.C. § 1983 against a single defendant, Elizondo, in the Eastern District of California. The case was referred to a magistrate judge under 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. With the complaint, the plaintiff asked to proceed in forma pauperis, which would have let him pay the filing fee over time rather than up front. On August 13, 2026, the magistrate judge issued findings and recommendations (ECF No. 7) advising that the request be denied because the plaintiff is a three-strikes litigant under 28 U.S.C. § 1915(g). That statute generally bars a prisoner with three or more qualifying prior dismissals from proceeding in forma pauperis unless he shows he is under imminent danger of serious physical injury.
The magistrate judge found that the plaintiff's claim, that Elizondo violated copyright laws every time he used the plaintiff's name without consent, did not meet the imminent danger exception. The plaintiff objected (ECF No. 8). He argued that he qualifies for the exception because the California Health Care Facility, where he is incarcerated, sits near a landfill that he says threatens the health of people living around it. The district judge's order does not identify the earlier cases that produced the strikes, and it does not reach the merits of the copyright theory or any other claim in the complaint.
The Court’s Holding
After de novo review under 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, the district judge adopted the findings and recommendations. Relying on Ray v. Lara, 31 F.4th 692, 701 (9th Cir. 2022), the court stated that the imminent danger exception requires a nexus between the alleged imminent danger and the violations of law alleged in the complaint. The danger described in the objections, the landfill's asserted health threat, was unrelated to the violations alleged in the complaint. The court therefore concluded that the objections did not show the exception applies and gave no basis to reject the magistrate judge's recommendations. The order does not address whether the landfill allegation would qualify under some other circumstances.
The order denies the motion to proceed in forma pauperis (ECF No. 2) and directs the plaintiff to pay the $405.00 filing fee before proceeding any further, with payment due within twenty-one days of entry of the order. It warns that failure to comply will result in a recommendation that the action be dismissed, and it refers the matter back to the assigned magistrate judge for further proceedings. Nothing has been dismissed. The warning of a future dismissal recommendation is not a judgment, and the case remains open pending payment or noncompliance.
Key Takeaways
- A prisoner with three strikes under 28 U.S.C. § 1915(g) cannot rely on an imminent danger allegation that has no nexus to the violations of law alleged in the complaint.
- A health concern about a facility's surroundings, such as a nearby landfill, did not rescue an in forma pauperis request in a case about the alleged unauthorized use of the plaintiff's name.
- After the plaintiff objected, the district judge reviewed the matter de novo and adopted the magistrate judge's recommendations, which turned them into an operative order with a payment deadline.
- The twenty-one-day fee deadline is enforced through a future recommendation of dismissal, not an automatic dismissal, so the case stays open for now.
- The order is unreported and applies existing Ninth Circuit authority, so it is not itself precedential.
Why It Matters
The order applies the nexus requirement from Ray v. Lara in a short, fact-bound way. The exception is tied to the claims actually pleaded, so a prisoner cannot satisfy it by pointing to general hazards that have nothing to do with the lawsuit. Litigants with strikes should expect courts to compare the asserted danger with the complaint before excusing the full filing fee.
As an unpublished district court order, it carries no precedential weight and is useful mainly as an illustration of how the Eastern District handles objections to three-strikes recommendations. Several matters remain open. The plaintiff may still pay the fee, the complaint has not been screened or decided on its merits, and the order does not address any claim about the landfill itself.