Glass v. Tercero

Filing 5

ORDER DISMISSING Action And Denying All Pending Motions As Moot (Doc.Nos. 2 , 3 ), signed by District Judge Anthony W. Ishii on 1/12/2015. CASE CLOSED.(Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RAYMOND GEORGE GLASS,

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Case No. 1:14-cv-02065-AWI-DLB PC

Plaintiff,
ORDER DISMISSING ACTION AND
DENYING ALL PENDING MOTIONS AS
MOOT

v.
J. TERCERO,

(Doc. Nos. 2, 3)
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Defendant.

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Plaintiff Raymond George Glass (“Plaintiff”) is a California state prisoner proceeding pro se
in this civil action pursuant to 42 U.S.C. § 1983.
Plaintiff filed this action on December 24, 2014. Plaintiff did not file his action on a

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complaint form, but rather captioned his pleading as a “Notice of Removal.” Though it is not

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entirely clear due to Plaintiff’s superfluous writing, it appears as though he is attempting to remove a

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state tort action filed in the Kings County Superior Court.

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According to Plaintiff’s exhibits, he filed an action against Defendant J. Tercero in Kings

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County Superior Court on December 31, 2013. He alleged that Defendant interfered with his ability

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to process his inmate health care appeals. The court sua sponte dismissed the action on June 3,

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2014, finding that Plaintiff’s appeals were not rejected in violation of the applicable regulations.

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ECF No. 1-1, at 98.

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Plaintiff’s exhibits also include a letter from the Fifth District Court of Appeal, dated October

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9, 2014, indicating that Plaintiff’s appeal had been dismissed for failure to follow the court’s

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directives.

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DISCUSSION

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This action must be dismissed for numerous reasons. Procedurally, only a defendant can

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remove an action to this Court. 28 U.S.C. § 1441. Plaintiff purports to remove a closed action to

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this Court, but he cannot do so. He also argues that the state courts “refuse to allow this non-

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frivolous suit to move forward, in unlawful protection of the defendant herein,” and he seeks to

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remove the action on this basis. ECF No. 1, at 6. Not only is disagreement with a state court

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decision not grounds for removal, but this Court does not have jurisdiction in a civil rights action to

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review a state court’s findings.
More importantly, Plaintiff has accrued “three strikes” under 28 U.S.C. 1915(g), and he is

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therefore subject to the imminent danger requirement.1 Andrews v. Cervantes, 493 F.3d 1047, 1055-

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56 (9th Cir. 2007). Under 1915(g), an inmate with three strikes may proceed in forma pauperis only

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where he faces imminent danger of serious physical injury at the time the complaint was filed.

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Andrews, 493 F.3d at 1055-56.

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Plaintiff has filed a motion to proceed in forma pauperis. However, under any set of facts

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that the Court can glean from his filings, he was not under imminent danger of serious physical

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injury at the time he filed this action. Certainly, even if cognizable, disagreement with the state

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court’s rulings would not qualify as an exception under 1915(g). To the extent that Plaintiff raises

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issues related to Defendant Tercero’s alleged failure to process his health care appeals, the events

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occurred between October 2012 and December 2012. ECF No. 1-1, at 99.

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The Court takes judicial notice of the following United States District Court cases: Glass v. White, 1:09-cv-01687-GSA
(E.D. Cal.) (dismissed on September 15, 2011, for failure to state a claim; no appeal filed); Glass v. Pimentel, 1:11-cv00119-GSA (E.D. Cal.) (dismissed on March 22, 2011, as frivolous; no appeal filed); Glass v. Pimentel, 1:11-cv-00429OWW-SMS (E.D. Cal.) (dismissed on March 21, 2011, as frivolous; no appeal filed); Glass v. White, 1:09-cv-01245MJS (E.D. Cal.) (dismissed on March 2, 2011, for failure to state a claim; no appeal filed); Glass v. Goodrick-Reynaga,
1:09-cv-02109 JLT (E.D. Cal.) (dismissed on December 16, 2010, for failure to state a claim; no appeal filed).

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ORDER
For the above reasons, this action is DISMISSED. All pending motions are DENIED AS
MOOT.

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IT IS SO ORDERED.
Dated: January 12, 2015
SENIOR DISTRICT JUDGE

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