(PC) Thomas v. Kern Valley State Prison Warden ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY JOSEPH THOMAS, Case No. 1:24-cv-00005-BAM (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO 13 v. ACTION 14 KERN VALLEY STATE PRISON FINDINGS AND RECOMMENDATIONS WARDEN, et al., RECOMMENDING PLAINTIFF’S MOTION 15 FOR LEAVE TO PROCEED IN FORMA Defendants. PAUPERIS BE DENIED 16 (ECF No. 2) 17 FOURTEEN (14) DAY DEADLINE 18 19 Plaintiff Larry Joseph Thomas (“Plaintiff”) is a state prisoner proceeding pro se in this 20 civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on January 2, 2024, 21 together with a motion to proceed in forma pauperis. (ECF Nos. 1, 2.) Plaintiff filed a certified 22 copy of his trust account statement on January 4, 2024. (ECF No. 5.) 23 Plaintiff is subject to 28 U.S.C. § 1915(g), which provides that “[i]n no event shall a 24 prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior 25 occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of 26 the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state 27 a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious 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 Warden 5 of Kern Valley State Prison and various judges of the Superior Court of California in Sacramento 6 County. (ECF No. 1.) Plaintiff argues that he was wrongly denied appointment of legal 7 assistance in seeking resentencing and modification of his restitution fines. Although his 8 handwriting is difficult to interpret, it appears Plaintiff alleges that due to the actions of these 9 judges in Sacramento, Plaintiff tried to commit suicide four separate times during his court 10 appearances. As relief, Plaintiff seeks his immediate release from custody. (Id.) 11 “[I]n order to qualify for the § 1915(g) imminent danger exception, a three-strikes 12 prisoner must allege imminent danger of serious physical injury that is both fairly traceable to 13 unlawful conduct alleged in his complaint and redressable by the court.” Ray v. Lara, 31 F.4th 14 692, 701 (9th Cir. 2022). 15 While Plaintiff appears to allege that he is in danger of continuing attempts to commit 16 suicide if he is not released from custody, this injury is not redressable by the court. Based on the 17 allegations on the face of the complaint, Plaintiff is challenging the validity or length of his 18 continued confinement. The exclusive method for asserting that challenge is by filing a petition 19 for a writ of habeas corpus, not by filing a section 1983 action. Wilkinson v. Dotson, 544 U.S. 20 74, 78 (2005). Accordingly, even assuming that Plaintiff is in imminent danger of serious 21 physical injury, the Court cannot grant the relief sought in this action that would alleviate such 22 danger. Accordingly, Plaintiff has not satisfied the exception from the three strikes bar under 28 23 U.S.C. § 1915(g), and Plaintiff must pay the $405.00 filing fee if he wishes to litigate this action. 24 1 The Court takes judicial notice of the following United States District Court cases: (1) Thomas v. Pelican 25 Bay State Prison, Case No. 3:11-cv-04359-EMC (N.D. Cal.) (dismissed on June 18, 2012 for failure to state a claim); (2) Thomas v. Valencia, Case No. 3:19-cv-00774-BAS-MSB (S.D. Cal.) (dismissed on August 13, 2019 as frivolous); (3) Thomas v. Richard J. Donovan, Case No. 3:19-cv-02181-JAH-RBB (S.D. Cal.) (dismissed on August 26 28, 2020 for failure to state a claim). The Court also takes judicial notice of the following United States Court of Appeals case: Thomas v. Cal. 27 Bd. of Parole, Case No. 20-55260 (9th Cir.) (dismissed on November 12, 2020 as frivolous). 28 2 The Court expresses no opinion on the merits of Plaintiff’s claims. 1 Alternatively, Plaintiff may file a notice of voluntary dismissal of this action. 2 Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a 3 District Judge to this action. 4 Further, it is HEREBY RECOMMENDED that: 5 1. The motion to proceed in forma pauperis, (ECF No. 2), be DENIED, pursuant to 28 6 U.S.C. § 1915(g); and 7 2. Plaintiff be ORDERED to pay the $405.00 initial filing fee in full to proceed with this 8 action (or file a notice of voluntary dismissal). 9 * * * 10 These Findings and Recommendations will be submitted to the United States District 11 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 12 fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may 13 file written objections with the court. The document should be captioned “Objections to 14 Magistrate Judge’s Findings and Recommendation.” Plaintiff is advised that the failure to file 15 objections within the specified time may result in the waiver of the “right to challenge the 16 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 17 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 18 IT IS SO ORDERED. 19 20 Dated: January 8, 2024 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28