(PC) Long v. United States ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN MICHAEL LONG, Case No. 1:23-cv-01117-BAM (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO 13 v. ACTION 14 UNITED STATES, et al., FINDINGS AND RECOMMENDATIONS RECOMMENDING PLAINTIFF’S MOTION 15 Defendants. FOR LEAVE TO PROCEED IN FORMA PAUPERIS BE DENIED 16 (ECF No. 2) 17 FOURTEEN (14) DAY DEADLINE 18 19 Plaintiff Kevin Michael Long (“Plaintiff”) is a county jail inmate proceeding pro se in this 20 civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on July 27, 2023, 21 together with a motion to proceed in forma pauperis. (ECF Nos. 1, 2.) 22 Plaintiff is subject to 28 U.S.C. § 1915(g), which provides that “[i]n no event shall a 23 prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior 24 occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of 25 the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state 26 a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious 27 /// 28 /// 1 physical injury.”1 2 The Court has reviewed Plaintiff’s complaint and finds that his allegations do not satisfy 3 the imminent danger exception to section 1915(g).2 Andrews v. Cervantes, 493 F.3d 1047, 4 1053−55 (9th Cir. 2007). In the complaint, Plaintiff attempts to raise claims against the United 5 States, California, Stanislaus County, the city of Modesto, Israel, various churches, the California 6 Secretary of State, all nations of the world, all people of the world, and all Christian churches. 7 (ECF No. 1.) Plaintiff appears to raise claims regarding his arrest for thinking he was the King of 8 Israel and violations of his rights regarding his entitlement to religious tithes from all churches, 9 his attempt to run as a write-in candidate for the United States presidency, and his secession from 10 the United States and formation of his own nation. (Id.) 11 “Imminent danger of serious physical injury must be a real, present threat, not merely 12 speculative or hypothetical.” Blackman v. Mjening, 2016 WL 5815905, at *1 (E.D. Cal. Oct. 4, 13 2016). To meet his burden under § 1915(g), Plaintiff must provide “specific fact allegations of 14 ongoing serious physical injury, or a pattern of misconduct evidencing the likelihood of imminent 15 serious physical injury.” Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). “[V]ague and 16 utterly conclusory assertions” of imminent danger or insufficient. White v. Colorado, 157 F.3d 17 1226, 1231–32 (10th Cir. 1998). 18 The allegations in the complaint disjointed and difficult to decipher at best, and appear to 19 raise only frivolous allegations. At no point does Plaintiff allege that he is at risk of suffering any 20 physical injury. 21 Accordingly, Plaintiff has failed to allege that he was in any imminent danger of serious 22 physical injury at the time the complaint was filed. Plaintiff has not satisfied the exception from 23 the three strikes bar under 28 U.S.C. § 1915(g), and Plaintiff must pay the $402.00 filing fee if he 24 wishes to litigate this action. 25 1 The Court takes judicial notice of the following United States District Court cases: (1) Long v. USA, Case No. 1:13-cv-01368-SAB (E.D. Cal.) (dismissed on Sept. 11, 2013 as frivolous); (2) Long v. USA, Case No. 1:13-cv- 26 01228-JLT (E.D. Cal.) (dismissed on Jan. 16, 2014 as frivolous); (3) Long v. Stanislaus Cty. Super. Ct., Case No. 1:13-cv-01370-SAB (E.D. Cal.) (dismissed on May 1, 2014 for failure to state a claim); (4) Long v. USA California, 27 Case No. 1:13-cv-01256-GSA (E.D. Cal.) (dismissed on June 23, 2014 for failure to state a claim). 28 2 The Court expresses no opinion on the merits of Plaintiff’s claims. 1 Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a 2 District Judge to this action. 3 Further, it is HEREBY RECOMMENDED that: 4 1. The motion to proceed in forma pauperis, (ECF No. 2), be DENIED, pursuant to 28 5 U.S.C. § 1915(g); and 6 2. Plaintiff be ORDERED to pay the $402.00 initial filing fee in full to proceed with this 7 action. 8 * * * 9 These Findings and Recommendations will be submitted to the United States District 10 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 11 fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may 12 file written objections with the court. The document should be captioned “Objections to 13 Magistrate Judge’s Findings and Recommendation.” Plaintiff is advised that the failure to file 14 objections within the specified time may result in the waiver of the “right to challenge the 15 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 16 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 17 IT IS SO ORDERED. 18 19 Dated: July 28, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28