(PC) Booth v. Garnica

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PATRICK J. BOOTH, Case No. 2:25-cv-3039-JDP (P) 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 L. GARNICA, et al., 15 Defendants. 16 17 Plaintiff has filed a complaint, ECF No. 1, and a request to proceed in forma pauperis 18 (“IFP”), ECF No. 8. However, plaintiff is a “Three-Striker” within the meaning of 28 19 U.S.C. § 1915(g). See Booth v. Pouge, Case No. 1:24-cv-0486-JLT-EPG (E.D. Cal. June 17, 20 2024) (recognizing plaintiff as a “three-striker” within in the meaning of 28 U.S.C. § 1915(g)). 21 As identified in Booth v. Pouge, the following cases constitute some of plaintiff’s strikes: 22 1. Booth v. Frazier, No. 1:18-cv-0070-LJO-BAM (E.D. Cal.) (dismissed for failure to state a claim by order filed on February 8, 23 2019, ECF No. 16); 24 2. Booth v. Campbell, No. 1:21-cv-0123-JLT-BAM (E.D. Cal.) (dismissed for failure to state a claim by order filed on July 12, 25 2022, ECF No. 19); and 26 3. Booth v. Williams College, No. 2:20-cv-0265-JAM-CKD (E.D. Cal.) (dismissed for failure to state a claim by order filed on March 27 22, 2021, ECF No. 13). 28 1 A “three-striker” plaintiff may be afforded an opportunity to proceed in forma pauperis 2 under section 1915(g) if he alleges that he was in imminent danger at the time he filed the 3 complaint. See 28 U.S.C. § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1052-53 (9th Cir. 4 2007). The court must determine if the potential harm amounts to “serious physical injury” and 5 whether the threat is “imminent.” Cervantes, 493 F.3d at 1055-56. A prisoner fails to meet the 6 exception where claims of imminent danger are conclusory. Id. at 1057 n.11. Section 7 § 1915(g)’s “imminent danger” exception cannot be triggered solely by complaints of past harm 8 or generalized fears of potential harm. See id. at 1053 (“The exception’s use of the present tense, 9 combined with its concern only with the initial act of ‘bring[ing]’ the lawsuit, indicates to us that 10 the exception applies if the danger existed at the time the prisoner filed the complaint.”). 11 Plaintiff brings claims primarily related to his state court restitution balance. ECF No. 1. 12 Specifically, he alleges that on March 17, 2025, he received a court order reducing the restitution 13 he owes to $10,000. Id. at 5. Plaintiff alleges that he paid his restitution in full on June 21, 2019, 14 but that defendant warden Garnica denied his request for a hearing on why the prison was still 15 withdrawing restitution payments from his account. Id. Separately, he alleges that defendant 16 officers Baker and Santos conspired to not send in a filing fee for a District Court case, where he 17 alleged claims about his restitution concerns.1 Id. at 6. 18 Plaintiff’s allegations are insufficient to show that he faced imminent danger of physical 19 injury at the time he filed the complaint. To receive the benefit of the imminent danger 20 exception, a prisoner must allege a danger that is “ready to take place” or “hanging threateningly 21 over one’s head.” Cervantes, 493 F.3d at 1056 (internal citations omitted). Plaintiff has not 22 made the required showing here. Although I do not question the sincerity of plaintiff’s concerns, 23 they are insufficient to demonstrate that he was under imminent danger of serious physical injury 24 at the time of filing. Therefore, plaintiff’s application for leave to proceed in forma pauperis 25 1 In connection with his claim that Baker and Santos did not mail his filing fee, plaintiff 26 states that he mailed the court a check for $400, however, the court would have likely mailed that 27 check back to plaintiff because the court only accepts checks for the exact amount of the filing fee, which is $405. See ECF No. 1 at 11 & 21; 28 https://www.caed.uscourts.gov/caednew/index.cfm/attorney-info/fee-schedule/. 1 | should be denied pursuant to § 1915(g). Plaintiff must submit the appropriate filing fee in to 2 || proceed with this action. 3 Accordingly, it is hereby ORDERED that the Clerk of Court assign a district judge to this 4 | action. 5 Further, it is hereby RECOMMENDED that plaintiffs application to proceed in forma 6 || pauperis, ECF No. 8, be DENIED and plaintiff be directed to tender the filing fee within twenty- 7 | one days of any order adopting these recommendations. 8 These findings and recommendations are submitted to the United States District Judge 9 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days of 10 | service of these findings and recommendations, any party may file written objections with the 11 | court and serve a copy on all parties. Any such document should be captioned “Objections to 12 | Magistrate Judge’s Findings and Recommendations,” and any response shall be served and filed 13 | within fourteen days of service of the objections. The parties are advised that failure to file 14 | objections within the specified time may waive the right to appeal the District Court’s order. See 15 | Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 16 1991). 17 18 IT IS SO ORDERED. 19 ( q Sty — Dated: _ January 30, 2026 q——— 20 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28