1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 EBER G. RUTH, Case No.: 1:24-cv-00727-KES-CDB (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO 13 v. DISMISS ACTION FOR PLAINTIFF’S FAILURE TO PAY FILING FEE 14 WARDEN, VALLEY STATE PRISON, (Docs. 5, 6) 15 Defendant. 14-DAY OBJECTION PERIOD 16

17

18

19 Plaintiff Eber G. Ruth is proceeding pro se in this civil rights action pursuant to 42 U.S.C. 20 § 1983, filed June 21, 2024. 21 All parties instituting any civil action, suit or proceeding in a district court of the United 22 States, except an application for writ of habeas corpus, must pay a filing fee of $405, unless 23 payment of such fee is excused through the Court’s granting of a plaintiff’s application to proceed 24 in forma pauperis. See

Plaintiff has not paid the $405 filing fee or applied to 25 proceed in forma pauperis pursuant to

. 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of 27 $55. See

(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule ⁋ 14 (eff. Dec. 1, 2023)). The additional $55 administrative fee does not apply to 1 As discussed in more detail below, Plaintiff has accrued three or more “strikes” under 2 section

, and his complaint fails to show that he is under imminent danger of 3 serious physical injury. Accordingly, the Court concludes that even if Plaintiff were to apply to 4 proceed in forma pauperis, the application would be denied under the “three strikes” provision set 5 forth in

(g). 6 Since an application to proceed in forma pauperis would be futile, on June 28, 2024, the 7 undersigned issued an Order to Show Cause directing Plaintiff to respond in writing why the 8 action should not be dismissed for his failure to pay the $405.00 filing fee. (Doc. 5). In the 9 alternative, Plaintiff was advised he could comply with the order by paying the filing fee in full 10 by that same deadline.

11 On July 9, 2024, Plaintiff filed a response to the show cause order. (Doc. 6). In the 12 response, Plaintiff explained it would be “impossible” for him to pay the filing fee (id. at 2) and 13 he otherwise did not seriously challenge the undersigned’s conclusion that Plaintiff is ineligible to 14 proceed in forma pauperis because of his prior strikes. To date, Plaintiff has failed to comply 15 with the Court’s order to show cause (e.g., by failing to pay the filing fee). 16 I. THREE-STRIKES PROVISION OF

17

governs in forma pauperis proceedings. The statute provides that “[i]n 18 no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or 19 more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in 20 a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or 21 fails to state a claim upon which relief may be granted, unless the prisoner is under imminent 22 danger of serious physical injury.”

(g). 23 In determining whether a case counts as a “strike,” “the reviewing court looks to the 24 dismissing court’s action and the reasons underlying it…. This means that the procedural 25 mechanism or Rule by which the dismissal is accomplished, while informative, is not 26 dispositive.” Knapp v. Hogan,

(9th Cir. 2013) (citation omitted). 27 /// 1 II. DISCUSSION 2 The Court takes judicial notice2 of the following prior lawsuits filed by Plaintiff in this 3 Court resulting in countable “strikes” for purposes of

(g): (1) Ruth v. Dubsky, 4 No. 1:00-cv-06011-OWW-LJO (E.D. Cal.) (dismissed for failure to state a claim on May 21, 5 2001); (2) Ruth v. Yearwood, No. 2:99-cv-2462-FCD-PAN (E.D. Cal.) (dismissed for failure to 6 state a claim on July 2, 2001) (3) Ruth v. Terhune, No. 1:00-cv-07065-AWI-LJO (E.D. Cal.) 7 (dismissed for failure to state a claim on May 8, 2003). Other judges of this Court (including the 8 undersigned) have acknowledged that these three prior lawsuits count as strikes. See, e.g., Gean 9 v. Estate of William Hyde Wollaston,3 No. 1:12-cv-01190-AWI-SMS (E.D. Cal.) (finding Plaintiff 10 had at least three strikes prior to filing the action; action dismissed); Ruth v. Warden, No. 1:21-cv- 11 00040-DAD-EPG (E.D. Cal.) (same); Ruth v. Bird, No. 1:23-cv-00529-KJM-CDB (same). 12 Moreover, the Court takes judicial notice of the following actions filed by Plaintiff in the Ninth 13 Circuit Court of Appeals: (1) Gean v. Estate of William Hyde Wollaston, No. 13-17144 (9th Cir.) 14 (Plaintiff’s application to proceed in forma pauperis denied because appeal was frivolous; 15 dismissed for failure to prosecute because Plaintiff failed to pay filing fee on February 20, 2014); 16 and (2) Ruth v. United States Judicial System, No. 20-15230 (9th Cir.) (appeal dismissed as 17 frivolous). 18 A dismissal for a failure to state a claim is a strike for purposes of

(g). 19 Moore v. Maricopa Cty. Sheriff’s Office,

(9th Cir. 2011). Further, the 20 dismissal of an appeal for failure to pay filing fee after the Ninth Circuit denied the application to 21 proceed in forma pauperis because the appeal was frivolous also counts as a strike for purposes of 22

(g). Richey v. Dahne,

(9th Cir. 2015). Because Plaintiff has 23 incurred at least three prior strikes, and each was dismissed prior to the commencement of the 24 current action on June 21, 2024, Plaintiff is subject to the section 1915(g) bar. Moreover, he is 25 precluded from proceeding in forma pauperis in this action unless, at the time he filed his 26 2 The Court may take judicial notice of court records. United States v. Wilson,

(9th Cir. 27 1980).

3 Plaintiff referred to himself as “Ruth Eber Gean/Gene.” (No. 1:12-cv-01190-AWI-SMS, Doc. 1.). 1 complaint, he was under imminent danger of serious physical injury. See Andrews v. Cervantes, 2

(9th Cir. 2007). 3 The Court has reviewed the complaint in this action and finds that Plaintiff’s allegations 4 do not meet the imminent danger exception. Plaintiff appears to generally allege that package 5 vendors are not processing his orders (Doc. 1 p. 2), as evidenced by the refund receipts attached 6 to his complaint. (Doc. 1 pp. 6-7). Plaintiff suggests that members of Union Supply Group are 7 biased against him by not processing his order and engaging in “roguishness[.]” Id. at 2. 8 Plaintiff’s allegations do not involve imminent danger of serious physical injury. See, e.g., 9 Harris v. Torres, No. 1:19-cv-01171 JLT (PC),

, at *2 (E.D. Cal. Feb. 4, 2020) 10 (plaintiff’s allegations regarding confiscation of property do not meet the imminent danger 11 exception); Simmons v. Kishbaugh, No. 2:19-cv-1650-TLN-EFB P,

, at *1 12 (E.D. Cal. Apr. 13, 2020) (“plaintiff alleges an access to courts claim … which fails to 13 demonstrate that plaintiff was under imminent danger of serious physical injury when he filed this 14 action”); Thomas v. Parks, No. 1:16-cv-01393-LJO-JLT (PC)

, at *2 (E.D. Cal. 15 Sept. 13, 2018) (“Plaintiff’s allegations in this action are based largely on difficulties with 16 obtaining copies of legal documents he prepared for other inmates and his access to the law 17 library as well as acts of harassment and retaliation … access to the courts, even if based on 18 unconstitutional retaliatory motive, does not equate to imminent danger of serious physical 19 injury”); Manago v. Beard, No. 1:16-cv-00293-LJO-SAB (PC),

, at *2 (E.D. 20 Cal. Aug. 8, 2016) (“Plaintiff’s vague and conclusory allegations relating to an ‘ongoing criminal 21 conspiracy’ among prison staff fails to present imminent danger exception to section 1915(g)”). 22 III. ORDER AND RECOMMENDATION 23 In sum, Plaintiff is precluded from proceeding in forma pauperis in this action because at 24 the time he filed his complaint, he already had accrued three strikes under § 1915(g). In addition, 25 Plaintiff’s allegations demonstrate that he is not under imminent danger of serious physical 26 injury. Andrews,

. 27 Moreover, Plaintiff’s response to the undersigned’s order to show cause does not remedy 1 | conclusion that Plaintiff is ineligible to proceed in forma pauperis. Plaintiff previously was 2 | warned that his failure to comply with the Court’s order to show cause “will result in a 3 | recommendation for dismissal of the action without further notice.” (Doc. 5 at 4) (emphasis 4 | in original). 5 Accordingly, for the reasons set forth above, it is HEREBY RECOMMENDED that 6 | Plaintiffs action be dismissed without prejudice for Plaintiffs failure to pay the filing fee in full. 7 These Findings and Recommendations will be submitted to the United States District 8 | Judge assigned to this case, pursuant to

(b)(). Within 14 days of the date of 9 | service of these Findings and Recommendations, Plaintiff may file written objections with the 10 | Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and 11 | Recommendations.” Plaintiff's failure to file objections within the specified time may result in 12 | waiver of his rights on appeal. Wilkerson v. Wheeler,

(9th Cir. 2014) (citing 13 | Baxter v. Sullivan,

(9th Cir. 1991)). 14 | IT IS SO ORDERED. Dated: _ August 19, 2024 | Wr bo 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28