Billy Driver, Jr. v. K. Gomez, et al.

• Court: District Court, E.D. California
• Decided: October 29, 2025
• Docket: 2:25-cv-01882
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BILLY DRIVER, JR., No. 2:25-cv-1882-DJC-SCR 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 K. GOMEZ, et al., 15 Defendants. 16 17 Plaintiff is an incarcerated individual representing herself in this civil rights action filed 18 pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 19 pursuant to 28 U.S.C. § 636(b)(1). 20 Plaintiff has not paid the required filing fee for this civil action nor requested leave to 21 proceed in forma pauperis. The in forma pauperis statute codified at 28 U.S.C. § 1915(g) 22 provides that: 23 In no event shall a prisoner bring a civil action . . . [in forma pauperis] if the prisoner has, on 3 or more prior occasions, while incarcerated 24 or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is 25 frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious 26 physical injury. 27 A review of court records from this court reveals that, while incarcerated, and before this 28 action was filed, plaintiff was found to have filed three or more prior strikes. Driver v. U.S. 1 Special Master, et al., Case No. 1:17-cv-0202-DAD-BAM (E.D. Cal.).1 This three strikes finding 2 occurred well in advance of the filing date of the present action. Therefore, the undersigned finds 3 that plaintiff has filed three or more actions that were dismissed for failing to state a claim. See 4 28 U.S.C. § 1915(g). 5 Having determined that plaintiff has accrued three prior strikes, he is therefore precluded 6 from proceeding in forma pauperis in this action unless he is “under imminent danger of serious 7 physical injury.” 28 U.S.C. § 1915(g). This exception applies at the time of filing the complaint. 8 Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007) (emphasizing that “it is the 9 circumstances at the time of the filing of the complaint that matters for purposes of the ‘imminent 10 danger’ exception to § 1915(g).”). The allegations in the complaint concern First Amendment 11 retaliation claims based on interference with plaintiff’s legal mail. ECF No. 1. There are no 12 factual allegations in the complaint that demonstrate any type of imminent harm that would allow 13 plaintiff to proceed with this action without paying fees. Section § 1915(g)’s “imminent danger” 14 exception cannot be triggered solely by complaints of past harm or generalized fears of potential 15 harm. See Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). In light of plaintiff’s 16 prior strikes and the lack of imminent danger at the time this complaint was filed, the undersigned 17 recommends requiring plaintiff to pay the entire filing fee within a period of 30 days or face 18 dismissal of the present action. 19 Accordingly, IT IS RECOMMENDED that plaintiff be required to pay the full $405 filing 20 fee for this action within 30 days or face dismissal of this action because he has accrued three or 21 more prior strikes under 28 U.S.C. § 1915(g). 22 These findings and recommendations are submitted to the United States District Judge 23 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty one days 24 after being served with these findings and recommendations, any party may file written 25

26 1 The court takes judicial notice of this finding that plaintiff is a three strikes litigant. See Fed. R. Evid. 201 (the court may take judicial notice of facts that are capable of accurate determination by 27 sources whose accuracy cannot reasonably be questioned); Harris v. County of Orange, 682 F.3d 1126, 1131-32 (9th Cir. 2012) (a court may take judicial notice of undisputed matters of public 28 record including documents on file in federal or state courts). 1 | objections with the court and serve a copy on all parties. Such a document should be captioned 2 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 3 || objections shall be filed and served within fourteen days after service of the objections. The 4 || parties are advised that failure to file objections within the specified time may waive the right to 5 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 6 || DATED: October 28, 2025 mk .

9 SEAN C. RIORDAN UNITED STATES MAGISTRATE JUDGE 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28