(PC) Ruth v. Warden ( 2021 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 EBER GENE RUTH, Case No. 1:21-cv-00040-EPG (PC) 10 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF 11 v. BE REQUIRED TO PAY THE $402.00 FILING FEE IN FULL 12 WARDEN, et al., OBJECTIONS, IF ANY, DUE WITHIN 13 Defendants. FOURTEEN (14) DAYS 14 ORDER DIRECTING CLERK TO ASSIGN DISTRICT JUDGE 15 16 I. BACKGROUND 17 Eber Ruth (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights action. 18 Plaintiff filed the complaint commencing this action on January 4, 2021. (ECF No. 1). 19 Plaintiff did not pay the filing fee or file an application to proceed in forma pauperis. This case 20 was transferred to the United States District Court for the Eastern District of California on 21 January 11, 2021. (ECF No. 4). 22 As the Court finds that Plaintiff had at least three “strikes” prior to filing the action and 23 that Plaintiff was not in imminent danger of serious physical injury at the time he filed the 24 action, the Court will recommend that Plaintiff be required to pay the $402 filing fee in full if 25 he wants to proceed with the action. 26 II. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915(g) 27 28 U.S.C. § 1915 governs proceedings in forma pauperis. Section 1915(g) provides 28 that “[i]n no event shall a prisoner bring a civil action … under this section if the prisoner has, 1 on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action 2 or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, 3 malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is 4 under imminent danger of serious physical injury.” 5 In determining whether a case counts as a “strike,” “the reviewing court looks to the 6 dismissing court’s action and the reasons underlying it…. This means that the procedural 7 mechanism or Rule by which the dismissal is accomplished, while informative, is not 8 dispositive.” Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013) (internal citation omitted). 9 See also O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008) (“no ‘particular formalities are 10 necessary for an order that serves as the basis of [an involuntary] dismissal.’”) (quoting 11 Yourish v. Cal. Amplifier, 191 F.3d 983, 986-87 (9th Cir. 1999)) (alteration in original). 12 III. ANALYSIS 13 a. Strikes 14 Plaintiff initiated this action on January 4, 2021. (ECF No. 1). The Court finds that, 15 prior to this date, Plaintiff had at least three cases dismissed that count as “strikes.” 16 The Court takes judicial notice of Gean v. Estate of William Hyde Wollaston, E.D. CA, 17 Case No. 1:12-cv-01190, ECF No. 2,1 in which Magistrate Judge Sandra M. Snyder found that 18 Plaintiff had at least three “strikes” prior to filing the action. The action was filed on July 19, 19 2012. Id. at ECF No. 1. 20 The Court also takes judicial notice of: 1) Gean v. Estate of William Hyde Wollaston, 21 9th Cir., Case No. 13-17144, ECF Nos. 8 & 10 (Plaintiff’s application to proceed in forma 22 pauperis was denied because the appeal was frivolous, and the case was later dismissed for 23 failure to prosecute because Plaintiff failed to pay the filing fee);2 2) Ruth v. Dubsky, E.D. CA, 24 Case No. 1:00-cv-06011, ECF Nos. 13 & 19 (dismissed for failure to state a claim); 3) Ruth v. 25 26 1 It is not clear why, but in this action Plaintiff referred to himself as “Ruth Eber Gean/Gene.” Estate of 27 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 Terhune, E.D. CA, Case No. 1:00-cv-07065, ECF Nos. 36 & 37 (dismissed for failure to state a 2 claim); and 4) Ruth v. United States Judicial System, 9th Cir., Case No. 20-15230, ECF No. 10 3 (appeal dismissed as frivolous). 4 Based on Estate of William Hyde Wollaston, E.D. CA, Case No. 1:12-cv-01190, as well 5 as the actions and appeals listed above, the Court finds that Plaintiff had at least three “strikes” 6 prior to filing this action. 7 b. 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)). 4 Because Plaintiff is pro se, in making the imminent danger determination the Court 5 must liberally construe Plaintiff’s allegations. Andrews, 493 F.3d at 1055 (9th Cir. 2007). 6 Plaintiff’s complaint is disorganized, at times difficult to understand, and appears to 7 include unrelated claims and defendants. And, none of the allegations in Plaintiff’s complaint 8 suggest that he was in imminent danger of serious physical injury at the time he filed his 9 complaint. 10 As to some of Plaintiff’s allegations, they are clearly insufficient to show imminent 11 danger. For instance, Plaintiff appears to allege that he received a write-up for refusing to 12 move that he should not have received. Plaintiff also alleges that his personal property and his 13 original ideals (patents, copyrights, and trademarks) have been stolen. None of these 14 allegations suggest that Plaintiff was in imminent danger of serious physical injury at the time 15 he filed his complaint. 16 Plaintiff also alleges that unnamed defendants conspired to have Plaintiff murdered by 17 exposing him to COVID-19 because of a civil rights action he filed. However, this is 18 conclusory, and there are no allegations in Plaintiff’s complaint that suggest that any defendant 19 intentionally exposed Plaintiff to COVID-19. Additionally, the allegation regarding exposure 20 to COVID-19 does not appear to show that Plaintiff was in imminent danger at the time he filed 21 his complaint because it appears that he was infected with COVID-19 prior to filing the 22 complaint. (ECF No. 1, p.gs 3 & 9). And, Plaintiff does not allege that he was deprived of 23 needed medical care associated with this diagnosis. 24 Finally, Plaintiff alleges that “staff defendants just keep unlawfully attacking Plaintiff 25 for (no) reason….” (Id. at 4). However, there are no facts alleged in the complaint to support 26 this assertion. Plaintiff does not allege who attacked him, when he was attacked, or the extent 27 of his injuries following each attack. Thus, this conclusory assertion is insufficient to invoke 28 the imminent danger exception. 1 2 As Plaintiff is a “three-striker” and does not appear to have been in imminent danger 3 || when he filed this action, the Court will recommend that Plaintiff be required to pay the $402 4 || filing fee in full if he wants to proceed with the action. 5 ||IV. CONCLUSION, RECOMMENDATIONS, AND ORDER 6 The Court finds that under § 1915(g) Plaintiff may not proceed in forma pauperis in this 7 || action. 8 Accordingly, it is HEREBY RECOMMENDED that: 9 1. Pursuant to 28 U.S.C. § 1915(g), Plaintiff not be allowed proceed in forma pauperis 10 in this action; and 11 2. Plaintiff be directed to pay the $402.00 filing fee in full if he wants to proceed with 12 this action. 13 These findings and recommendations will be submitted to the United States district 14 || judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 15 || fourteen (14) days after being served with these findings and recommendations, Plaintiff may 16 || file written objections with the Court. The document should be captioned “Objections to 17 || Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 18 || objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 19 |) Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 20 |) (9th Cir. 1991)). 21 Additionally, IT IS ORDERED that the Clerk of Court is directed to assign a district 22 || judge to this case. 23 IT IS SO ORDERED. 25 |! Dated: _ January 14, 2021 [Je hoy —— 26 UNITED STATES MAGISTRATE JUDGE 27 28