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6 UNITED STATES DISTRICT COURT

7 EASTERN DISTRICT OF CALIFORNIA

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9 EBER GENE RUTH, Case No. 1:22-cv-01166-JLT-EPG (PC)

10 Plaintiff, FINDINGS AND RECOMMENDATIONS,

RECOMMENDING THAT PLAINTIFF

11 v. BE REQUIRED TO PAY THE $402.00

FILING FEE IN FULL IF HE WANTS TO

12 STATE OF CALIFORNIA, et al., PROCEED WITH THIS ACTION

13 Defendants. OBJECTIONS, IF ANY, DUE WITHIN

FOURTEEN (14) DAYS

14 15 I. BACKGROUND 16 Eber Ruth (“Plaintiff”) is a state prisoner proceeding pro se with this action. The Court 17 received the complaint commencing this action on September 13, 2022. (ECF No. 1). Plaintiff 18 did not pay the filing fee or file an application to proceed in forma pauperis. 19 As the Court finds that Plaintiff had at least three “strikes” prior to filing the action and 20 that Plaintiff was not in imminent danger of serious physical injury at the time he filed the 21 action, the Court will recommend that Plaintiff be required to pay the $402 filing fee in full if 22 he wants to proceed with the action. 23 II. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915(g) 24 28 U.S.C. § 1915 governs proceedings in forma pauperis. Section 1915(g) provides 25 that “[i]n no event shall a prisoner bring a civil action … under this section if the prisoner has, 26 on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action 27 or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, 28 malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is 1 under imminent danger of serious physical injury.” 2 In determining whether a case counts as a “strike,” “the reviewing court looks to the 3 dismissing court’s action and the reasons underlying it…. This means that the procedural 4 mechanism or Rule by which the dismissal is accomplished, while informative, is not 5 dispositive.” Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013) (citation omitted). See 6 also O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008) (“no ‘particular formalities are 7 necessary for an order that serves as the basis of [an involuntary] dismissal.’”) (quoting 8 Yourish v. Cal. Amplifier, 191 F.3d 983, 986-87 (9th Cir. 1999)) (alteration in original). 9 III. ANALYSIS 10 i. Strikes 11 Plaintiff initiated this action on September 13, 2022. (ECF No. 1). The Court finds 12 that, prior to this date, Plaintiff had at least three cases dismissed that count as “strikes.” 13 The Court takes judicial notice of Gean v. Estate of William Hyde Wollaston, E.D. CA, 14 Case No. 1:12-cv-01190, ECF No. 2,1 in which Magistrate Judge Sandra M. Snyder found that 15 Plaintiff had at least three “strikes” prior to filing the action. The action was filed on July 19, 16 2012. Id. at ECF No. 1. The Court also takes judicial notice of Ruth v. Warden, E.D. CA, 17 Case No. 1:21-cv-00040, ECF No. 9, in which District Judge Dale A. Drozd found that Plaintiff 18 had at least three “strikes” prior to filing the action. The action was filed on January 4, 2021. 19 Id. at ECF No. 1. 20 Finally, the Court also takes judicial notice of: 1) Gean v. Estate of William Hyde 21 Wollaston, 9th Cir., Case No. 13-17144, ECF Nos. 8 & 10 (Plaintiff’s application to proceed in 22 forma pauperis was denied because the appeal was frivolous, and the case was later dismissed 23 for failure to prosecute because Plaintiff failed to pay the filing fee);2 2) Ruth v. Dubsky, E.D. 24 CA, Case No. 1:00-cv-06011, ECF Nos. 13 & 19 (dismissed for failure to state a claim); 3) 25

26 1 It is not clear why, but in this action Plaintiff referred to himself as “Ruth Eber Gean/Gene.” Gean v. 27 Estate of William Hyde Wollaston, E.D. CA, Case No. 1:12-cv-01190, ECF No. 1, p. 1 2 If an application to proceed in forma pauperis is denied as frivolous by an appellate court, the case 28 counts as a “strike” even if the appeal is not dismissed until later when the plaintiff fails to pay the filing fee. Richey v. Dahne, 807 F.3d 1202, 1208 (9th Cir. 2015). 1 Ruth v. Terhune, E.D. CA, Case No. 1:00-cv-07065, ECF Nos. 36 & 37 (dismissed for failure 2 to state a claim); and 4) Ruth v. United States Judicial System, 9th Cir., Case No. 20-15230, 3 ECF No. 10 (appeal dismissed as frivolous). 4 Based on Gean v. Estate of William Hyde Wollaston and Ruth v. Warden, as well as the 5 other actions and appeals listed above, the Court finds that Plaintiff had at least three “strikes” 6 prior to filing this action. 7 ii. Imminent Danger 8 As Plaintiff had at least three “strikes” prior to filing this action, Plaintiff is precluded 9 from proceeding in forma pauperis unless Plaintiff was, at the time the complaint was filed, in 10 imminent danger of serious physical injury. The availability of the imminent danger exception 11 “turns on the conditions a prisoner faced at the time the complaint was filed, not at some earlier 12 or later time.” Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). “Imminent danger 13 of serious physical injury must be a real, present threat, not merely speculative or 14 hypothetical.” Blackman v. Mjening, 2016 WL 5815905, at *1 (E.D. Cal. Oct. 4, 2016). To 15 meet his burden under § 1915(g), Plaintiff must provide “specific fact allegations of ongoing 16 serious physical injury, or a pattern of misconduct evidencing the likelihood of imminent 17 serious physical injury.” Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). “[V]ague 18 and utterly conclusory assertions” of imminent danger are insufficient. White v. Colorado, 157 19 F.3d 1226, 1231-32 (10th Cir. 1998). See also Martin, 319 F.3d at 1050 (“[C]onclusory 20 assertions” are “insufficient to invoke the exception to § 1915(g)….”). The “imminent danger” 21 exception is available “for genuine emergencies,” where “time is pressing” and “a threat … is 22 real and proximate.” Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). 23 Additionally, “the complaint of a three-strikes litigant must reveal a nexus between the 24 imminent danger it alleges and the claims it asserts, in order for the litigant to qualify for the 25 ‘imminent danger’ exception of § 1915(g). In deciding whether such a nexus exists, we will 26 consider (1) whether the imminent danger of serious physical injury that a three-strikes litigant 27 alleges is fairly traceable to unlawful conduct asserted in the complaint and (2) whether a 28 favorable judicial outcome would redress that injury. The three-strikes litigant must meet both 1 requirements in order to proceed [in forma pauperis].” Stine v. Fed. Bureau of Prisons, 2015 2 WL 5255377, at *3 (E.D. Cal. Sept. 9, 2015) (quoting Pettus v. Morgenthau, 554 F.3d 293, 3 298-99 (2d Cir. 2009)). See also Ray v. Lara, 31 F.4th 692, 701 (9th Cir. 2022) (“[I]n order to 4 qualify for the § 1915(g) imminent danger exception, a three-strikes prisoner must allege 5 imminent danger of serious physical injury that is both fairly traceable to unlawful conduct 6 alleged in his complaint and redressable by the court.”). 7 Because Plaintiff is pro se, in making the imminent danger determination the Court 8 must liberally construe Plaintiff’s allegations. Andrews, 493 F.3d at 1055 (9th Cir. 2007). 9 Plaintiff generally alleges that there was a data breach, that his personal information 10 was stolen, and that his personal information was used to steal his identity. There are no 11 allegations suggesting that Plaintiff was in imminent danger of serious physical injury at the 12 time he filed his complaint. 13 As Plaintiff is a “three-striker” and was not in imminent danger when he filed this 14 action, the Court will recommend that Plaintiff be required to pay the $402 filing fee in full if 15 he wants to proceed with the action. 16 IV. CONCLUSION AND RECOMMENDATIONS 17 The Court finds that Plaintiff may not proceed in forma pauperis in this action. 18 Accordingly, it is HEREBY RECOMMENDED that: 19 1. Pursuant to 28 U.S.C. § 1915(g), Plaintiff not be allowed proceed in forma pauperis 20 in this action; and 21 2. Plaintiff be directed to pay the $402.00 filing fee in full if he wants to proceed with 22 this action. 23 These findings and recommendations will be submitted to the United States district 24 judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 25 fourteen (14) days after being served with these findings and recommendations, Plaintiff may 26 file written objections with the Court. The document should be captioned “Objections to 27 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 28 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 1 || Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 2 || (9th Cir. 1991)). 3

TT IS SO ORDERED.

>| Dated: _ September 14, 2022 sf hey 6 UNITED STATES MAGISTRATE JUDGE

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