1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER GABRIEL VALENCIA, Case No. 1:26-cv-04554-HBK 12 Plaintiff, ORDER TO RANDOMLY ASSIGN CASE TO A DISTRICT JUDGE 13 v. FINDINGS AND RECOMMENDATIONS TO 14 KERRY KUNZ, et. al., DENY PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS1 15 Defendants. (Doc. 2) 16 FOURTEEN-DAY OBJECTION PERIOD 17 18 Plaintiff, a state prisoner at the Corcoran State Prison operated by the California 19 Department of Corrections and Rehabilitation (“CDCR”), commenced this action by filing a pro 20 se civil rights complaint pursuant to 42 U.S.C. § 1983 on June 12, 2026. (Doc. 1, “Complaint”). 21 Plaintiff moves to proceed in forma pauperis (“IFP”). (Doc. 2). The undersigned recommends 22 that the district court deny Plaintiff’s IFP motion under 28 U.S.C. § 1915(g) because Plaintiff has 23 at least three prior actions that qualify as “strikes” and the Complaint does not show that he meets 24 the imminent danger exception. In addition, because the Complaint and IFP motion contain false 25 statements, the undersigned recommends that this action be dismissed without prejudice instead 26 of Plaintiff being afforded the opportunity of paying the filing fee. 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2026). 1 BACKGROUND AND FACTS 2 The Complaint names as defendants California Board of Parole Hearings members Kerry 3 Kunz and Brie Delgado, C.F.O. of Medical E. Martin, and M.A.T. Doctor Mehta, and identifies 4 Plaintiff’s claims as arising under the Fourteenth Amendment. (Id. at 3, 5, 7). Liberally 5 construed, Plaintiff alleges he was denied the ability to advance his parole-board hearings because 6 of false urine tests. (Id.). 7 MOTION TO PROCEED IFP 8 Except for applications for writs of habeas corpus, all civil actions filed in federal district 9 court require payment of a $405.00 filing fee. 28 U.S.C. § 1914(a). A case may proceed without 10 prepayment of this fee only if the court grants leave to proceed IFP under 28 U.S.C. § 1915(a). 11 See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 12 1176, 1177 (9th Cir. 1999). 13 A. Three Strikes Framework 14 Under 28 U.S.C. § 1915(g), a prisoner who, on three or more prior occasions while 15 incarcerated, has brought actions or appeals dismissed as frivolous, malicious, or for failure to 16 state a claim may not proceed IFP absent a showing of imminent danger of serious physical injury 17 at the time of filing. The Three Strikes Rule was enacted to help curb non-meritorious prisoner 18 litigation. See Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1723 (2020) (citations omitted). For a 19 dismissal to count as a strike, it must have been a prior occasion—the dismissal order must have 20 been docketed before plaintiff initiated the current case. See § 1915(g). The court must look to 21 the basis of prior dismissals to ensure it qualifies as a strike. Knapp v. Hogan, 738 F.3d 1106, 22 1109 (9th Cir. 2013). Dismissals for failure to state a claim count as strikes regardless of whether 23 they are with or without prejudice. Lomax, 140 S. Ct. at 1727. 24 B. Plaintiff’s Qualifying Strikes 25 The Court takes judicial notice of the following actions filed by Plaintiff that were 26 dismissed as frivolous of for failure to state a claim: 27 (1) Valencia v. O’Connell., No. 8:14-cv-01085 (C.D. Cal. Aug. 1, 2014); 28 (2) Valencia v. O’Connell., No. 8:14-cv-01739 (C.D. Cal. Nov. 12, 2014); and 1 (3) Valencia v. Clark, et al,, No. 1:21-cv-00137-JLT-SAB (E.D. Cal. Feb. 8, 2022). 2 In Valencia v. O’Connell., No. 8:14-cv-01085, after Plaintiff failed to submit a copy of his 3 inmate statement, the court denied IFP status and concluded that Plaintiff’s claim was essentially 4 a malpractice/breach of contract claim against private counsel and that Plaintiff could not show 5 counsel was acting under of color of state law, so the action was dismissed as frivolous, malicious 6 or fails to state a claim. Similarly, in Valencia v. O’Connell., No. 8:14-cv-01739, the court again 7 found the defendant was not acting under of color of state law, dismissed the complaint as 8 frivolous, malicious, or for failure to state claim, and concluded that amendment would be futile. 9 These O’Connell actions were dismissed for reasons enumerated reasons in § 1915A and 10 therefore each qualify as a strike. El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016). 11 In Valencia v. Clark, et al,, No. 1:21-cv-00137-JLT-SAB, the district court adopted 12 findings and recommendations concluding that the operative complaint failed to state claim and 13 that Plaintiff failed to prosecute the case after screening and being afforded an opportunity to 14 amend. This dismissal also qualifies as a strike. Harris v. Mangum, 863 F.3d 1133, 1143 (9th 15 Cir. 2017) ( “Accordingly, we hold that when (1) a district court dismisses a complaint on the 16 ground that it fails to state a claim, (2) the court grants leave to amend, and (3) the plaintiff then 17 fails to file an amended complaint, the dismissal counts as a strike under § 1915(g).”). 18 Thus, each of these three dismissals qualifies as a strike for purposes of § 1915(g), even if 19 they were without prejudice. Lomax, 140 S. Ct. 1721, 1724. 20 C. The Imminent Danger Exception Does Not Apply 21 A three-strikes prisoner may proceed IFP only if the complaint plausibly alleges that he 22 faced imminent danger of serious physical injury at the time of filing, and that the alleged danger 23 bears a nexus to the legal violations asserted. Ray v. Lara, 31 F. 4th 692, 700-701 (9th Cir. Apr. 24 11, 2022) (adopting nexus test). “In deciding whether such a nexus exists, we will consider (1) 25 whether the imminent danger of serious physical injury that a three-strikes litigant alleges is fairly 26 traceable to unlawful conduct asserted in the complaint and (2) whether a favorable judicial 27 outcome would redress that injury.” Id. at 700. The court must construe the complaint’s facial 28 allegations liberally, but may disregard allegations that are speculative, conclusory, or fanciful. 1 Andrews, 493 F.3d at 1057, fn. 11. Here, the Complaint alleges no facts suggesting Plaintiff 2 faced imminent risk of serious physical harm when he filed this action. 3 Because Plaintiff has accrued at least three strikes and the Complaint does not plausibly 4 allege imminent danger of serious physical injury sufficient to invoke the § 1915(g) exception, 5 the undersigned recommends that Plaintiff’s motion to proceed IFP be denied. 6 D. False Statement on Complaint and IFP Motion 7 In his signed Complaint Plaintiff states, “I HAVE NO STRIKES I PAID FOR ALL MY 8 SUITS.” (Doc. 1 at 2, capitalization in original). In his IFP motion, Plaintiff declares that he has 9 not received any money in the last twelve months. (Doc. 2 at 1). Both statements are false. As 10 described above, Plaintiff has prior strikes.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER GABRIEL VALENCIA, Case No. 1:26-cv-04554-HBK 12 Plaintiff, ORDER TO RANDOMLY ASSIGN CASE TO A DISTRICT JUDGE 13 v. FINDINGS AND RECOMMENDATIONS TO 14 KERRY KUNZ, et. al., DENY PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS1 15 Defendants. (Doc. 2) 16 FOURTEEN-DAY OBJECTION PERIOD 17 18 Plaintiff, a state prisoner at the Corcoran State Prison operated by the California 19 Department of Corrections and Rehabilitation (“CDCR”), commenced this action by filing a pro 20 se civil rights complaint pursuant to 42 U.S.C. § 1983 on June 12, 2026. (Doc. 1, “Complaint”). 21 Plaintiff moves to proceed in forma pauperis (“IFP”). (Doc. 2). The undersigned recommends 22 that the district court deny Plaintiff’s IFP motion under 28 U.S.C. § 1915(g) because Plaintiff has 23 at least three prior actions that qualify as “strikes” and the Complaint does not show that he meets 24 the imminent danger exception. In addition, because the Complaint and IFP motion contain false 25 statements, the undersigned recommends that this action be dismissed without prejudice instead 26 of Plaintiff being afforded the opportunity of paying the filing fee. 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2026). 1 BACKGROUND AND FACTS 2 The Complaint names as defendants California Board of Parole Hearings members Kerry 3 Kunz and Brie Delgado, C.F.O. of Medical E. Martin, and M.A.T. Doctor Mehta, and identifies 4 Plaintiff’s claims as arising under the Fourteenth Amendment. (Id. at 3, 5, 7). Liberally 5 construed, Plaintiff alleges he was denied the ability to advance his parole-board hearings because 6 of false urine tests. (Id.). 7 MOTION TO PROCEED IFP 8 Except for applications for writs of habeas corpus, all civil actions filed in federal district 9 court require payment of a $405.00 filing fee. 28 U.S.C. § 1914(a). A case may proceed without 10 prepayment of this fee only if the court grants leave to proceed IFP under 28 U.S.C. § 1915(a). 11 See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 12 1176, 1177 (9th Cir. 1999). 13 A. Three Strikes Framework 14 Under 28 U.S.C. § 1915(g), a prisoner who, on three or more prior occasions while 15 incarcerated, has brought actions or appeals dismissed as frivolous, malicious, or for failure to 16 state a claim may not proceed IFP absent a showing of imminent danger of serious physical injury 17 at the time of filing. The Three Strikes Rule was enacted to help curb non-meritorious prisoner 18 litigation. See Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1723 (2020) (citations omitted). For a 19 dismissal to count as a strike, it must have been a prior occasion—the dismissal order must have 20 been docketed before plaintiff initiated the current case. See § 1915(g). The court must look to 21 the basis of prior dismissals to ensure it qualifies as a strike. Knapp v. Hogan, 738 F.3d 1106, 22 1109 (9th Cir. 2013). Dismissals for failure to state a claim count as strikes regardless of whether 23 they are with or without prejudice. Lomax, 140 S. Ct. at 1727. 24 B. Plaintiff’s Qualifying Strikes 25 The Court takes judicial notice of the following actions filed by Plaintiff that were 26 dismissed as frivolous of for failure to state a claim: 27 (1) Valencia v. O’Connell., No. 8:14-cv-01085 (C.D. Cal. Aug. 1, 2014); 28 (2) Valencia v. O’Connell., No. 8:14-cv-01739 (C.D. Cal. Nov. 12, 2014); and 1 (3) Valencia v. Clark, et al,, No. 1:21-cv-00137-JLT-SAB (E.D. Cal. Feb. 8, 2022). 2 In Valencia v. O’Connell., No. 8:14-cv-01085, after Plaintiff failed to submit a copy of his 3 inmate statement, the court denied IFP status and concluded that Plaintiff’s claim was essentially 4 a malpractice/breach of contract claim against private counsel and that Plaintiff could not show 5 counsel was acting under of color of state law, so the action was dismissed as frivolous, malicious 6 or fails to state a claim. Similarly, in Valencia v. O’Connell., No. 8:14-cv-01739, the court again 7 found the defendant was not acting under of color of state law, dismissed the complaint as 8 frivolous, malicious, or for failure to state claim, and concluded that amendment would be futile. 9 These O’Connell actions were dismissed for reasons enumerated reasons in § 1915A and 10 therefore each qualify as a strike. El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016). 11 In Valencia v. Clark, et al,, No. 1:21-cv-00137-JLT-SAB, the district court adopted 12 findings and recommendations concluding that the operative complaint failed to state claim and 13 that Plaintiff failed to prosecute the case after screening and being afforded an opportunity to 14 amend. This dismissal also qualifies as a strike. Harris v. Mangum, 863 F.3d 1133, 1143 (9th 15 Cir. 2017) ( “Accordingly, we hold that when (1) a district court dismisses a complaint on the 16 ground that it fails to state a claim, (2) the court grants leave to amend, and (3) the plaintiff then 17 fails to file an amended complaint, the dismissal counts as a strike under § 1915(g).”). 18 Thus, each of these three dismissals qualifies as a strike for purposes of § 1915(g), even if 19 they were without prejudice. Lomax, 140 S. Ct. 1721, 1724. 20 C. The Imminent Danger Exception Does Not Apply 21 A three-strikes prisoner may proceed IFP only if the complaint plausibly alleges that he 22 faced imminent danger of serious physical injury at the time of filing, and that the alleged danger 23 bears a nexus to the legal violations asserted. Ray v. Lara, 31 F. 4th 692, 700-701 (9th Cir. Apr. 24 11, 2022) (adopting nexus test). “In deciding whether such a nexus exists, we will consider (1) 25 whether the imminent danger of serious physical injury that a three-strikes litigant alleges is fairly 26 traceable to unlawful conduct asserted in the complaint and (2) whether a favorable judicial 27 outcome would redress that injury.” Id. at 700. The court must construe the complaint’s facial 28 allegations liberally, but may disregard allegations that are speculative, conclusory, or fanciful. 1 Andrews, 493 F.3d at 1057, fn. 11. Here, the Complaint alleges no facts suggesting Plaintiff 2 faced imminent risk of serious physical harm when he filed this action. 3 Because Plaintiff has accrued at least three strikes and the Complaint does not plausibly 4 allege imminent danger of serious physical injury sufficient to invoke the § 1915(g) exception, 5 the undersigned recommends that Plaintiff’s motion to proceed IFP be denied. 6 D. False Statement on Complaint and IFP Motion 7 In his signed Complaint Plaintiff states, “I HAVE NO STRIKES I PAID FOR ALL MY 8 SUITS.” (Doc. 1 at 2, capitalization in original). In his IFP motion, Plaintiff declares that he has 9 not received any money in the last twelve months. (Doc. 2 at 1). Both statements are false. As 10 described above, Plaintiff has prior strikes. Furthermore, Plaintiff’s trust fund statement reflects 11 eleven deposits totaling more than $800.00 between January 11, 2026, and June 13, 2026. (Doc. 12 6 at 1-2). 13 Title 28 U.S.C. § 1915(e)(2)(A) provides that, “[n]otwithstanding any filing fee, or any 14 portion thereof, that may have been paid, the court shall dismiss the case at any time if the court 15 determines that the allegation of poverty is untrue.” Under Federal Rule of Civil Procedure 11, 16 by signing or filing a paper, a party certifies that, to the best of that person’s knowledge, 17 information, and belief, formed after a reasonable inquiry, the filing is not presented for an 18 improper purpose and that factual contentions have evidentiary support. Fed. R. Civ. P. 11(b)(1), 19 (3). The Court may sanction violations of Rule 11 and may exercise its inherent authority to 20 sanction bad-faith conduct, including by pro se litigants. Simpson v. Lear Astronics Corp., 77 21 F.3d 1170, 1177 (9th Cir. 1996); Walker v. Guelker, 29 F.3d 1386, 1390 (9th Cir. 1994). 22 A litigant who submits a pleading “exposes himself ‘to the pains of perjury in a case of 23 bad faith.’” Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960) (quoting Pothier v. 24 Rodman, 261 U.S. 307, 309 (1923)). Fraud on the court constitutes bad-faith conduct that may be 25 sanctioned under the court’s inherent authority. Chambers v. NASCO, Inc., 501 U.S. 32, 54 26 (1991). Misrepresentation of assets is sufficient grounds to deny IFP status. Sekou v. United 27 States, No. 2:26-CV-00041-JAD-DJA, 2026 WL 893004, at *1 (D. Nev. Mar. 30, 2026) (citing 28 Kennedy v. Huibregtse, 831 F.3d 441, 443-44 (7th Cir. 2016)). 1 The Court finds that Plaintiff has abused the judicial process by intentionally 2 misrepresenting both his financial status and his litigation history to obtain IFP status. Plaintiff’s 3 prison trust account records show eleven deposits totaling more than $800 over the six-month 4 period immediately preceding the filing of this action, yet his sworn IFP application claims he 5 received no deposits during that time. Plaintiff also affirmatively represents that he has “no 6 strikes,” despite at least three prior dismissals that qualify as strikes. On these facts, the Court 7 concludes that Plaintiff’s bad-faith conduct constitutes abuse of the judicial process and warrants 8 denial of IFP status and dismissal of this action rather than permitting Plaintiff to cure his 9 misrepresentations by paying the filing fee. 10 Accordingly, IT IS ORDERED: 11 The Clerk of Court shall randomly assign this case to a district judge for consideration of 12 these Findings and Recommendations. 13 It is further RECOMMENDED: 14 Plaintiff’s motion to proceed in forma pauperis (Doc. 2) be DENIED under 15 § 1915(g) and the case dismissed without prejudice based on the false statements in the 16 Complaint and IFP motion. 17 NOTICE TO PARTIES 18 These Findings and Recommendations are submitted to the United States District Judge 19 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days after 20 being served with a copy of these Findings and Recommendations, a party may file written 21 objections with the Court. Id.; Local Rule 304(b). The document should be captioned, 22 “Objections to Magistrate Judge’s Findings and Recommendations” and shall not exceed fifteen 23 (15) pages. The Court will not consider exhibits attached to the Objections. To the extent a party 24 wishes to refer to any exhibit(s), the party should reference the exhibit in the record by its 25 CM/ECF document and page number, when possible, or otherwise reference the exhibit with 26 specificity. Any pages filed in excess of the fifteen (15) page limitation may be disregarded by 27 the District Judge when reviewing these Findings and Recommendations under 28 U.S.C. § 28 636(b)(l)(C). A party’s failure to file any objections within the specified time may result in the 1 | waiver of certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). 2 | These Findings and Recommendations are not an order that is immediately appealable to the 3 | Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of 4 | Appellate Procedure, should not be filed until entry of the District Court's judgment. 5 ° | Dated: _ July 2. 2026 Mihaw. □□ fareh Hack 7 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28