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Shaka S. Muhammad v. D.K. Sisto et al

June 21, 2011

SHAKA S. MUHAMMAD, PLAINTIFF,
v.
D.K. SISTO ET AL.,
DEFENDANTS.



ORDER AND FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding pro se with a civil rights action seeking relief under 42 U.S.C. § 1983. This matter is before the court on defendants' motion to revoke plaintiff's in forma pauperis status and dismiss this action because plaintiff has had three or more actions dismissed as frivolous, malicious or for failure to state a claim. Plaintiff has filed an opposition to the motion, and defendants have filed a reply.

BACKGROUND

Plaintiff is proceeding on his original complaint against defendants Hayward, Nasir, Ridge, and Vaughn. Therein, he alleges that the defendants have prevented him from fasting for Ramadan in violation of his rights under the Free Exercise Clause of the First Amendment. In terms of relief, plaintiff seeks monetary damages, injunctive relief, and transfer to a federal prison. (Compl. at 3-5.)

DEFENDANTS' MOTION TO REVOKE PLAINTIFF'S IFP STATUS

I. Defendants' Motion

Defense counsel argues that the court should revoke plaintiff's IFP status and dismiss this action because on three or more occasions before filing this action plaintiff incurred a strike under 28 U.S.C. § 1915(g). Counsel lists nearly a dozen actions that plaintiff has brought prior to filing this action. In these earlier-filed civil actions, the court dismissed plaintiff's complaint for failure to state a claim or dismissed the cause of action as barred under § 1915(g). Counsel also notes that this action concerns defendants' alleged violation of plaintiff's right to free exercise of religion and that plaintiff, therefore, may not avail himself of the imminent danger of serious physical injury exception to § 1915(g). (Defs.' Mot. to Dismiss at 2-5 & Exs. B-K.)

II. Plaintiff's Opposition

In opposition to defendants' motion, plaintiff argues that the court should allow him to proceed in this action because: (1) defendants have already admitted to certain elements of his claims, (2) the Lost Found Nation of Islam was granted relief in Horn v. People of California, (3) once plaintiff paid the partial filing fee in this case, he should be treated as a paying litigant, and (4) the Prison Litigation Reform Act does not impair the substantive rights of prisoners. Alternatively, plaintiff requests twenty-one days to pay the filing fee associated with the bringing of this action. (Pl.'s Opp'n to Defs.' Mot. to Dismiss at 1-2.)

III. Defendants' Reply

In reply, defense counsel argues that plaintiff's arguments have no merit. In addition, counsel contends that the court should not allow plaintiff twenty-one days to pay the filing fee. Counsel argues that denial of IFP status mandates dismissal of an action. Relying on a decision from the Eleventh Circuit Court of Appeals, counsel contends that a prisoner cannot simply pay the filing fee after being denied IFP status. Rather, the statute requires him to pay the filing fee at the time he brings the suit. In this regard, counsel contends that, if the court denies him IFP status, plaintiff has no further right to take steps to prosecute this action. (Defs.' Reply at 1-3.)

ANALYSIS

The federal in forma pauperis statute includes a limitation on the number of actions in which a prisoner can proceed in forma pauperis.

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under [§ 1915] if the 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 States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

28 U.S.C. § 1915(g). "[T]he plain language of § 1915(g) requires that the court look at cases dismissed prior to the enactment of the [Prison Litigation Reform Act] to determine when a prisoner has used his three ...


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