Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GENTLE THOMAS, JR., Case No.: 3:26-cv-0467-LL-GC 12 Plaintiff, ORDER: (1) DENYING MOTION TO 13 vs. PROCEED IN FORMA PAUPERIS AS BARRED BY 28 U.S.C. § 1915(g) 14 AND (2) DISMISSING CIVIL 15 ADAM MADISON, ACTION WITHOUT PREJUDICE 16 Defendant. FOR FAILURE TO PAY FILING FEE REQUIRED BY 17 28 U.S.C. § 1914(a)

18 [ECF No. 2] 19 20 Plaintiff Gentle Thomas, Jr. (“Plaintiff” or “Thomas”), a prisoner currently 21 incarcerated at Wabash Valley Correctional Facility in Carlisle, Indiana and who is 22 proceeding pro se, has filed a civil action, along with a motion to proceed in forma pauperis 23 (“IFP”). See ECF Nos. 1, 2. For the reasons explained below, the Court DENIES Plaintiff’s 24 IFP motion, and DISMISSES the civil action without prejudice. 25 I. IFP MOTION 26 A. Legal Standard 27 All parties instituting any civil action, suit or proceeding in a district court of the 28 United States, except an application for writ of habeas corpus, must pay a filing fee of 1 $405, consisting of a $350 statutory fee plus an additional administrative fee of $55, 2 although the administrative fee does not apply to persons granted leave to proceed IFP. 3 See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee 4 Schedule, § 14 (eff. Dec. 1, 2023)). The action may proceed despite a plaintiff’s failure to 5 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 6 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007) (“Cervantes”). 7 For prisoners like Thomas, however, the Prison Litigation Reform Act (“PLRA”) 8 amended 28 U.S.C. § 1915 to preclude the privilege to proceed IFP: 9 . . . if [a] prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United 10 States that was dismissed on the grounds that it is frivolous, malicious, or fails 11 to state a claim upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury. 12 13 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 14 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). 15 Once a prisoner has acquired three “strikes,” he may not proceed IFP unless he can 16 show he is facing “imminent danger of serious physical injury.” Cervantes, 493 F.3d at 17 1055. “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which 18 were dismissed ‘on the ground that (they were) frivolous, malicious, or fail[ed] to state a 19 claim,” Andrews, 398 F.3d at 1116 n.1, “even if the district court styles such dismissal as 20 a denial of the prisoner’s application to file the action without prepayment of the full filing 21 fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). When courts “review a 22 dismissal to determine whether it counts as a strike, the style of the dismissal or the 23 procedural posture is immaterial. Instead, the central question is whether the dismissal 24 ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El-Shaddai v. 25 Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 F.3d 607, 26 615 (4th Cir. 2013)). 27 / / / 28 / / / 1 B. Analysis 2 Defendants typically carry the initial burden to produce evidence demonstrating a 3 prisoner is not entitled to proceed IFP, but “in some instances, the district court docket 4 records may be sufficient to show that a prior dismissal satisfies at least one on the criteria 5 under § 1915(g) and therefore counts as a strike.” Andrews, 398 F.3d at 1120. This is one 6 of those instances, as federal court dockets show Thomas is no longer eligible to proceed 7 IFP because, while incarcerated, he has had more than three prior prisoner civil actions 8 dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon 9 which relief may be granted. Pursuant to Federal Rule of Evidence 201(b)(2), this Court 10 may take judicial notice of the docket records in Plaintiff’s prior cases. See id.; United 11 States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (stating that a court may take judicial 12 notice of its own records in other cases, as well as other courts’ records). 13 The following records sufficiently show Thomas has at least four qualifying strikes: 14 (1) Thomas v. Goffinet, et al., No. 2:24-cv-0193-JRS-MG (S.D. Ind. Sept. 24, 2024) (ECF No. 16) (Order dismissing complaint for failing to state 15 a claim pursuant to 28 U.S.C. § 1915A, with leave to amend); id. (S.D. 16 Ind. Nov. 13, 2024) (ECF No. 18) (Order dismissing civil action for failure to prosecute in compliance with Court Order);1 17 18 (2) Thomas v. Carter, et al., 2:24-cv-0332-JRS-MJD (S.D. Ind. Nov. 10, 2024) (ECF No. 10) (Order dismissing complaint for failure to state a 19 claim pursuant to 28 U.S.C. § 1915A, with leave to amend); id. (S.D. 20 Ind. Jan. 13, 2025) (ECF No. 11) (Order dismissing civil action for failure to prosecute in compliance with Court Order); 21 (3) Thomas v. Carter, et al., No. 2:24-cv-0343-MPB-MG (S.D. Ind. May 22 17, 2023) (ECF No. 7) (Order dismissing complaint as duplicative and 23 noting the complaint was “identical” to a complaint filed in a previous 24 25 1 A failure to amend does “not negate the determination already made by the Court that the 26 complaint [plaintiff] had filed . . . failed to state a claim.” Harris v. Magnum, 863 F.3d 1133, 1142 27 (9th Cir. 2017). “A prisoner may not avoid incurring strikes simply by declining to take advantage of [an] opportunit[y] to amend.” Id. at 1143. 28 1 civil action); 2 (4) Thomas v. C.R. England Transp., No. 2:25-cv-0174-MPB-MJD (S.D. 3 Ind. May 1, 2025) (ECF No. 9) (Order dismissing amended complaint for failing to state a claim pursuant to 28 U.S.C. § 1915A, with leave to 4 amend); id. (S.D. Ind. June 24, 2025) (ECF No. 11) (Order dismissing 5 civil action for failure to prosecute in compliance with Court Order).

6 Because Thomas has accumulated these prior qualifying dismissals while 7 incarcerated,3 he may not proceed IFP unless he can show that he is in “imminent danger 8 of serious physical injury.” 28 U.S.C. § 1915(g). Thomas bears the burden of satisfying 9 this exception. See Andrews, 398 F.3d at 1120. To do so, his pleading must contain a 10 “plausible allegation that [he] faced ‘imminent danger of serious physical injury’ at the 11 time of filing.” Cervantes, 493 F.3d at 1055 (quoting U.S.C. § 1915(g)). Imminent danger 12 requires a claimed physical harm that is “ready to take place” or “hanging threateningly 13 over one’s head.” Id. at 1056. 14 Here, Plaintiff’s Complaint fails to include any plausible allegations of imminent 15 physical danger. Instead, Plaintiff claims the defendant is liable for securities fraud under 16 section 10(b) of the Securities and Exchange Act of 1934 (codified at 15 U.S.C. § 78a). 17 See ECF No. 1 at 3. The Complaint contains no allegations that indicate Thomas was in 18 imminent danger of serious physical harm at the time the Complaint was filed. Thomas is 19 therefore barred from proceeding IFP in this action. 20 21 22 2 The Ninth Circuit has recognized that a duplicative suit is either frivolous or malicious, and thus the dismissal of such a suit qualifies as a strike within the meaning of the three strikes provision 23 of 28 U.S.C. § 1915(g). See Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) 24 (recognizing a duplicative complaint is either frivolous or malicious); see also LeBlanc v. Asuncion, 699 Fed. App’x 762 (9th Cir. 2017) (holding that dismissal of duplicative complaint 25 was properly deemed a strike).

26 3 Plaintiff has since been denied IFP privileges pursuant to § 1915(g) in United States District 27 Court for the Southern District of Indiana. See Thomas v. General Electric Capital Corp., Case No. 2:25-cv-0613-JPH-MG (S.D. Ind. Dec. 15, 2025) (Order denying motion to proceed IFP 28 I I. CONCLUSION 2 For the reasons explained, the Court: 3 (1) DENIES Plaintiffs Motion to Proceed IFP [ECF No. 2] as barred by 28 4 ||U.S.C. § 1915(g); 5 (2) DISMISSES this civil action without prejudice based on Plaintiff’s failure to 6 || pay the full $405 civil filing fee required by 28 U.S.C. § 1914(a); 7 (3) CERTIFIES that an IFP appeal would not be taken in good faith pursuant to 8 U.S.C. § 1915(a)(3), and 9 (4) DIRECTS the Clerk of Court to enter a judgment of dismissal and to close 10 || the file. 11 IT IS SO ORDERED. 12 Dated: August 10, 2026 NO 13 Qe 14 Honorable Linda Lopez 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 5 oe □□