Davydon

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

10

11 RICARDO MARTINEZ, Case No. 1:25-cv-01504-HBK (PC)

12 Plaintiff, ORDER TO RANDOMLY ASSIGN CASE TO

A DISTRICT JUDGE

13 v.

FINDINGS AND RECOMMENDATIONS TO

14 DAVYDON, et al., DENY PLAINTIFF’S MOTION TO

PROCEED IN FORMA PAUPERIS UNDER 28

15 Defendants. U.S.C. § 1915 (g)1

16 FOURTEEN-DAY OBJECTION PERIOD

17 (Doc. No. 2)

18

19 Plaintiff Ricardo Martinez, a state prisoner currently confined at the California Substance

20 Abuse Treatment Facility (“SATF”), operated by the California Department of Corrections and

21 Rehabilitation (“CDCR”), initiated this action by filing a pro se civil rights complaint pursuant to

22 42 U.S.C. § 1983 on August 26, 2025, in the Northern District of California. (Doc. No. 1,

23 “Complaint”). On the same day, Plaintiff filed an application to proceed in forma pauperis

24 (“IFP”). (Doc. No. 2). The Northern District transferred Plaintiff’s case to this Court on

25 November 6, 2025. (Doc. Nos. 9, 10). The undersigned recommends the district court deny

26 Plaintiff’s IFP motion under 28 U.S.C. § 1915(g) because Plaintiff has had at least three actions

27

1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302

28 (E.D. Cal. 2025).

1 or appeals that constitute strikes and the Complaint does not establish that Plaintiff meets the

2 imminent danger exception.

3 BACKGROUND

4 Plaintiff’s Complaint lists the following as Defendants: Rostislav Davydon, Primary Care

5 Provider at SATF; J. Clark Kelso, Court-Appointed Receiver; J. Lewis, Former CDCR Deputy

6 Director; and B. Phillips, Administrative Warden at SATF. (Doc. No. 1 at 2). The Complaint is

7 disjointed, consisting primarily of conclusory statements interspersed with notices to Defendant

8 Phillips. (Id. at 3-12). The Complaint references and attaches a health care request form dated

9 July 31, 2025, MRI reports from 2013, 2015, and 2018,2 and healthcare grievances dated

10 November 19, 2024 and July 24, 2024. (Id. at 13-28). To the extent discernable, the Complaint

11 alleges an Eighth Amendment deliberate medical indifference claim.

12 Based on the attached MRI reports, Plaintiff was previously diagnosed with spinal cord

13 abnormalities, including suspected lumbar disc disease, disc protrusions, and lesions at various

14 times prior to 2018. (Id. at 14-21). As a result, Plaintiff states he suffers from loss of function of

15 his upper and lower extremities and is in pain. (Id. at 3). He alleges that in 2024, his primary

16 care provider, Defendant Davydon, denied him “serious medical care” by denying his request for

17 a second opinion regarding the “worsening” of his neurological symptoms. (Id. at 8, 24).

18 Plaintiff further alleges Defendant Davydon’s denial for a second opinion was based on false

19 progress notes from a nurse practitioner on March 26, 2024. (Id.). In his recent health care

20 service request dated July 31, 2025, Plaintiff requests to see medical for his spinal cord

21 compressions, harsh pain, chest pain, discharge of blood from his ears, irregular flashing

22 headaches, and weakness in his hands, shoulders, feet, and legs. (Id. at 13).

23 The Complaint also includes two unrelated claims. First, Plaintiff asserts if Defendant

24 Phillips were to take an adverse action against Plaintiff in response to Plaintiff’s filing of a claim,

25 then that action would be retaliation under the First Amendment. (Id. at 7). Second, Plaintiff

26 contends officials at Kern Valley hired inmates to assault him on July 14, 2018, and July 21,

27

28 2 The 2018 report appears to be a transcription of the report in Plaintiff’s handwriting.

1 2019. (Id.). Plaintiff seeks a court order as relief. (Id. at 3).

2 MOTION TO PROCEED IFP

3 All parties instituting any civil action, suit, or proceeding in any district court of the

4 United States, except an application for writ of habeas corpus, must pay a filing fee of $405.00.

5 See 28 U.S.C. § 1914(a). An action may proceed despite a party’s failure to pay this filing fee

6 only if the party is granted leave to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. §

7 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169

8 F.3d 1176, 1177 (9th Cir. 1999).

9 A. Applicable Three Strikes Law

10 The “Three Strikes Rule” states:

In no event shall a prisoner bring a civil action or proceeding under

11 this section if the prisoner has, on 3 or more prior occasions, while

incarcerated or detained in any facility, brought an action or appeal

12 in the United States that was dismissed on grounds that it was

frivolous, malicious, or fails to state a claim upon which relief may

13 be granted, unless the prisoner is under imminent danger of serious

physical injury.

14

15 28 U.S.C. § 1915(g). As part of the Prison Litigation Reform Act, the Three Strikes Rule was

16 enacted to help curb non-meritorious prisoner litigation. See Lomax v. Ortiz-Marquez, 140 S. Ct.

17 1721, 1723 (2020) (citations omitted)). Under § 1915(g), prisoners who have repeatedly brought

18 unsuccessful suits may be barred from bringing a civil action and paying the fee on a payment

19 plan once they have had on prior occasions three or more cases dismissed as frivolous, malicious,

20 or for failure to state a claim. Id.; see also Andrews, 493 F.2d at 1052.

21 For a dismissal to count as a strike, the dismissal had to be on a “prior occasion,” meaning

22 the order dismissing the case must have been docketed before plaintiff initiated the current case.

23 See § 1915(g). The reviewing court then looks to the basis of prior dismissals. Knapp v. Hogan,

24 738 F.3d 1106, 1109 (9th Cir. 2013). A dismissal counts as a strike when the dismissal of the

25 action was for frivolity, maliciousness, failure to state a claim, or an appeal was dismissed for the

26 same reasons. Lomax, 140 S. Ct. at 1723 (citing Section 1915(g)); see also Washington v. Los

27 Angeles Cty. Sheriff’s Dep’t, 833 F.3d 1048 (9th Cir. 2016) (reviewing dismissals that count as

28 strikes); Coleman v. Tollefson, 135 S. Ct. 1759, 1761 (2015) (dismissal that is on appeal counts as

1 a strike during the pendency of the appeal); Spencer v. Barajas, 140 F.4th 1061, 1068 (9th Cir.

2 2025) (finding a voluntary dismissal under Rule 41(a)(1) was not a strike because the dismissal

3 was not “‘on the grounds that’ the case was frivolous, malicious, or failed to state a claim”). It is

4 immaterial whether the dismissal for failure to state a claim was with or without prejudice, as

5 both count as a strike under § 1915(g). Lomax, 140 S. Ct. at 1727. When a district court disposes

6 of an in forma pauperis complaint requiring the full filing fee, then such a complaint is

7 “dismissed” for purposes of §1915(g). Louis Butler O’Neal v. Price, 531 F.3d 1146, 1153 (9th

8 Cir. 2008).

9 Once a prisoner-plaintiff has accumulated three strikes, he/she may not proceed without

10 paying the full filing fee, unless “the complaint makes a plausible allegation” that the prisoner

11 “faced ‘imminent danger of serious physical injury’ at the time of filing” of the complaint.

12 Andrews, 493 F.3d at 1051-52 (addressing the imminent danger exception for the first time in the

13 Ninth Circuit). The court must construe the prisoner’s “facial allegations” liberally to determine

14 whether the allegations of physical injury are plausible. Williams v. Paramo, 775 F.3d 1182,

15 1190 (9th Cir. 2015).

16 To avail oneself of this narrow exception, “the PLRA requires a nexus between the

17 alleged imminent danger and the violations of law alleged in the prisoner’s complaint.” Ray v.

18 Lara, 31 F. 4th 692, 700-701 (9th Cir. Apr. 11, 2022) (adopting nexus test). “In deciding

19 whether such a nexus exists, we will consider (1) whether the imminent danger of serious

20 physical injury that a three-strikes litigant alleges is fairly traceable to unlawful conduct asserted

21 in the complaint and (2) whether a favorable judicial outcome would redress that injury.” Id. at

22 700 (adopting test as articulated by Second Circuit, citation omitted). The three-strikes litigant

23 must meet both requirements of the nexus test to proceed. Id.

24 Assertions of imminent danger may be rejected as overly speculative, fanciful, or

25 “conclusory or ridiculous.” Andrews, 493 F.3d at 1057, fn. 11. Similarly, “vague and utterly

26 conclusory assertions” of imminent danger are insufficient. White v. Colorado, 157 F.3d 1226,

27 1231–32 (10th Cir. 1998). Instead, the “imminent danger” exception exists “for genuine

28 emergencies,” where “time is pressing” and “a threat . . . is real and proximate.” Lewis v.

1 Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). Thus, conditions that posed imminent danger to a

2 plaintiff at some earlier times are immaterial, as are any subsequent conditions. Andrews, 493

3 F.3d at 1053; Blackman v. Mjening, 2016 WL 5815905, at *1 (E.D. Cal. Oct. 4, 2016).

4 B. Plaintiff Has Three or More Qualifying Strikes

5 A review of the PACER Database reveals that Plaintiff has filed at least eleven civil

6 actions or appeals in a court of the United States.3 The Court takes judicial notice that Plaintiff

7 has incurred at least three strikes prior to filing the instant action:

8 • Martinez v. Davey, et al., No. 1:16-cv-00084-LJO-BAM (PC) (E.D. Cal Oct. 30, 2017)

9 (dismissed for failure to state a claim upon which relief may be granted after Plaintiff

10 failed to file amended complaint) (Doc. No. 48);

11 • Martinez v. Davey, No. 1:16-cv-01655-AWI-BAM (PC) (E.D. Cal. Mar. 5, 2018)

12 (dismissed for failure to state a claim) (Doc. No. 23);

13 • Martinez v. Lewis, et al., No. 1:19-cv-00812-DAD-SAB (PC) (E.D. Cal. Dec. 16, 2019)

14 (dismissed for failure to state a claim) (Doc. No. 24);

15 • Martinez v. Standon et al., No. 1:19-cv-00845-DAD-SAB (PC) (E.D. Cal. Dec. 11, 2019)

16 (dismissed for failure to state a claim) (Doc. No. 24);

17 • Martinez v. Pfeiffer, et al., No. 1:19-cv-01684-DAD-SAB (PC) (E.D. Cal Mar. 30, 2020)

18 (dismissed for failure to state a claim) (Doc. No. 26);

19 • Martinez v. Brown, et al., No. 1:19-cv-00967-AWI-GSA (PC) (E.D. Cal. Dec. 2, 2020)

20 (dismissed for failure to state a claim) (Doc. No. 33); and

21 • Martinez v. Gitova et al., No. 5:19-cv-03087-EJD (N.D. Cal. Mar. 27, 2020) (dismissed

22 for failure to state a claim) (Doc. No. 9).

23 Plaintiff has previously been denied IFP status by at least four other courts because of his three-

24 striker status. See, e.g., Martinez v. Zepp, et al., 1:20-cv-00646-DAD-JLT (PC) (E.D. Cal. June

25 8, 2020) (Doc. No. 15); Martinez v. Pfeiffer, No. 1:20-cv-00998-DAD-SKO (PC) (E.D. Cal. May

26 17, 2021) (Doc. No. 19); Martinez v. Pfeiffer et al., No. 1:22-cv-00126-ADA-HBK (PC) (E.D.

27

28 3 https://pacer.uscourts.gov.

1 Cal. Sep. 7, 2022) (Doc. No. 13); and Martinez v. Ornelas et al., No. 1:22-cv-00909-ADA-GSA

2 (PC) (E.D. Cal. Sep. 23, 2022) (Doc. No. 8). As evidenced by the above, Plaintiff has three or

3 more qualifying strikes for purposes of § 1915(g).

4 C. The Imminent Danger Exception Does Not Apply

5 Due to Plaintiff’s three-strike status, he may not proceed IFP unless the Complaint

6 contains plausible allegations that Plaintiff is in imminent danger of serious physical injury on the

7 date the Complaint is filed. Andrews, 493 F.3d at 1052-53. Liberally construing the Complaint,

8 the undersigned finds that it contains no plausible allegations sufficient to allege Plaintiff faced

9 imminent danger of serious physical injury at the time he filed this action.

10 Admittedly, Plaintiff suffers from spinal cord lesions and/or various neurological

11 conditions. (Doc. No. 1 at 3). Spinal and neurological conditions can be serious conditions that if

12 not treated properly may place a person in imminent danger of physical bodily harm. Dopp v.

13 Larimer, 731 F. App'x 748, 751 (10th Cir. 2018) (finding an allegation of an inadequately treated

14 spinal condition that was worsening sufficient to allege imminent danger). Indeed, this Court has

15 previously found that Plaintiff’s complained of symptoms and failure to treat them stated a viable

16 Eighth Amendment deliberate indifference claim. See Martinez v. Davey, No. 1:16-cv-1658-

17 AWI-JLT(PC), 2020 WL 605363, at *3 (E.D. Cal. Feb. 7, 2020), report and recommendation

18 adopted, No. 116CV1658AWIJLTPC, 2020 WL 4892251 (E.D. Cal. Aug. 20, 2020) (finding

19 Plaintiff’s claim that he requires further treatment by a neurosurgeon specializing in spinal tumors

20 for his “lesions and tumors on his spine causing him tremendous pain, weakness, and a tendency

21 to fall,” “lesions to the head that are causing a hemorrhage of the left ear,” and “flashing

22 headaches” when “medical specialists” recommended “further treatment” and defendants failed to

23 provide any treatment sufficiently stated an Eighth Amendment deliberate indifference claim).4

24 Here, Plaintiff does not allege that he is not being treated for his chronic medical

25 condition. Instead, Plaintiff appears to disagree with his current treatment for his spinal and

26

4 Plaintiff’s complaint in this earlier action was ultimately dismissed for failure to exhaust his

27 administrative remedies. Martinez v. Davey, No. 1:16-cv-1658-DAD-JLT(PC), 2021 WL 4480498 (E.D.

Cal. Sept. 30, 2021).

28

1 neurological conditions. See Simmons v. Clark, 88 F. App'x 275 (9th Cir. 2004) (unpublished)

2 (affirming the district court's conclusion that the plaintiff had failed to identify an imminent

3 danger, where the plaintiff was receiving medical care for ongoing pain but disagreed with the

4 course of treatment). The gravamen of Plaintiff’s Complaint is that his primary care provider,

5 Defendant Davydon, refused in 2024 to refer him to a specialist for a “second opinion

6 evaluation.” (Doc. No. 1 at 3, 24). Denial of a request for a second opinion, that occurred over a

7 year ago, is insufficient to allege imminent danger. Frederick v. Kever, 2019 WL 3857705, at *3

8 (N.D. Fla. Aug. 8, 2019) (finding a denial of a request for a second opinion is insufficient to show

9 imminent danger when the claims arise out of events that occurred more than 5 months prior to

10 the filing of plaintiff’s complaint). Kelly v. Warden of Kern Valley State Prison, 2024 WL

11 4450655, at *6-8 (E.D. Cal. Oct. 9, 2024) (finding no imminent danger when a plaintiff did not

12 receive the care he wanted regarding his heart condition but was still receiving care); McElroy v.

13 Dep't of Corr., 2025 WL 1403995, at *8 (N.D. Cal. Apr. 16, 2025) (finding vague claims of

14 denial of medical care are insufficient to show imminent danger). Plaintiff is not entitled to a

15 particular type of treatment, and his disagreement with his current treatment, without more, does

16 not allege he is in imminent danger of physical harm. Roberts v. Spalding, 783 F.2d 867, 870

17 (9th Cir. 1986) (stating an inmate does not have a right to outside medical care).

18 The Complaint is devoid of dates regarding the conduct of Defendants J. Clark Kelso, J.

19 Lewis, and B. Phillips,. (Doc. No. 1 at 4-6). Plaintiff’s broad assertion that the above Defendants

20 were aware of Defendant Davydon’s alleged unconstitutional acts but failed to act on this

21 information does not fall within the scope of the imminent danger exception. See Stine v. Fed.

22 Bureau of Prisons, No. 1:13-CV-1883 AWI-MJS, 2015 WL 5255377, at *6 (E.D. Cal. Sept. 9,

23 2015) (“[o]verly speculative and fanciful allegations do not plausibly show imminent danger”)

24 (citing Andrews, 493 F.3d at 1057 n. 11); McElroy v. Dep't of Corr., 2025 WL 1403995, at *8

25 (N.D. Cal. Apr. 16, 2025) (finding vague claims of denial of medical care are insufficient to show

26 imminent danger).

27 Furthermore, although Plaintiff claims that he suffers from loss mobility in his upper and

28 lower extremities, he fails to allege this loss resulted from or was in anyway connected to a denial

1 of medical care, when this loss occurred, or if Plaintiff is currently at risk of further loss. (See

2 id.); Bibbs v. Kern Valley State Prison, 2024 WL 4957231, at *3 (E.D. Cal. Nov. 22, 2024),

3 (finding no imminent danger when plaintiff had spinal abnormalities for over a year and failed to

4 allege the denial of medical care would worsen his condition) vacated as moot, 2024 WL

5 5220577 (E.D. Cal. Dec. 26, 2024). Instead, Plaintiff suffers from chronic pain and is receiving

6 treatment but desires a “second” outside opinion. Courts have found no imminent danger where a

7 prisoner suffers from chronic pain but is receiving treatment. Florence v. Allison, No. 22-cv-

8 02265-JSC, 2023 WL 2375253, at *3 (N.D. Cal. Mar. 6, 2023) (collecting cases).

9 And despite Plaintiff attaching a recent request for health care services, Plaintiff does not

10 claim that he was denied health care services for these additional ailments5 nor does he allege that

11 he is experiencing these ailments in the body of his Complaint. Critical, the imminent danger

12 exception “turns on the conditions a prisoner faced at the time the complaint was filed, not at

13 some earlier or later time.” Andrews, 493 F.3d at 1053, 1056. Therefore, the Complaint fails to

14 allege facts that Plaintiff is in imminent danger of physical harm in connection to his deliberate

15 indifference medical claim.

16 Finally, the undersigned finds that neither of the Complaint’s unrelated vague claims

17 stemming from events that occurred in 2018 and 2019 fare any better. Without more, these

18 allegations fail to indicate the existence of an ongoing threat of imminent danger. Plaintiff does

19 not allege any current risk of retaliation nor that his currently subject to any imminent physical

20 attacks by inmates. See Garrett v. Pat. Horn, Warden of Kern Valley State Prison, No. 1:25-cv-

21 00128-HBK (PC), 2025 WL 868899, at *13 (E.D. Cal. Mar. 20, 2025) (finding a single incident

22 of excessive force occurring months prior to the filing of the complaint failed to show imminent

23 physical danger), report and recommendation adopted, 2025 WL 1151075 (E.D. Cal. April 18,

24 2025), appeal dismissed, 2025 WL 3205862 (9th Cir. Oct. 23, 2025); Gonzales v. Castro, No.

25 1:09-cv-01545-AWI-MJS, 2010 WL 2471030, at *2 (E.D. Cal. June 9, 2010) (finding prison staff

26

27 5 Plaintiff’s recent medical request sought medical care for his spinal cord compressions, harsh pain, chest

pain, discharge of blood from his ears, irregular flashing headaches, and weakness of the hands, arms,

28 shoulders, hips, feet, and legs are the same symptoms he advanced in his earlier case.

1 retaliation occurring three months before filing of complaint insufficient to show an ongoing

2 threat), report and recommendation adopted, 2010 WL 3341862 (E.D. Cal. Aug. 25, 2010).

3 Based on the foregoing, because there are no factual allegations from which the Court can

4 infer that Plaintiff is not receiving medical care for his chronic pain and is currently under threat

5 of imminent physical harm sufficient to invoke the § 1915(g) exception, the undersigned

6 recommends Plaintiff’s IFP motion be denied under § 1915(g) due to his three-strike status and

7 his failure to meet the imminent danger exception.

8 Accordingly, it is hereby ORDERED:

9 The Clerk of Court shall randomly assign this case to a district judge for consideration of

10 these Findings and Recommendations.

11 It is further RECOMMENDED:

12 1. Plaintiff’s motion to proceed in forma pauperis (Doc. No. 2) be DENIED under

13 § 1915(g) due to his three-strike status and his failure to meet the imminent danger

14 exception.

15 2. Plaintiff be directed to pay the $405.00 filing fee in full, absent which the Court

16 dismiss this action without prejudice.

17 NOTICE TO PARTIES

18 These Findings and Recommendations will be submitted to the United States District

19 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

20 after being served with a copy of these Findings and Recommendations, a party may file written

21 objections with the Court. Id.; Local Rule 304(b). The document should be captioned,

22 “Objections to Magistrate Judge’s Findings and Recommendations” and shall not exceed fifteen

23 (15) pages. The Court will not consider exhibits attached to the Objections. To the extent a party

24 wishes to refer to any exhibit(s), the party should reference the exhibit in the record by its

25 CM/ECF document and page number, when possible, or otherwise reference the exhibit with

26 specificity. Any pages filed in excess of the fifteen (15) page limitation may be disregarded by

27 the District Judge when reviewing these Findings and Recommendations under 28 U.S.C.

28 § 636(b)(l)(C). A party’s failure to file any objections within the specified time may result in the

1 | waiver of certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014).

2

3 Dated: _ December 5, 2025 oo. Th. Bareh Hack

4 HELENA M. BARCH-KUCHTA

; UNITED STATES MAGISTRATE JUDGE

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

10