IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
June 21, 2011
SHAKA S. MUHAMMAD, PLAINTIFF,
D.K. SISTO ET AL.,
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.
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.)
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 strikes." Rodriguez v. Cook, 169 F.3d 1176, 1181 (9th Cir. 1999).
For purposes of § 1915(g), the court must determine whether plaintiff has, on three or more occasions prior to the filing of this new action, brought a civil action or appeal that was dismissed on the grounds that it was frivolous, malicious, or failed to state a claim upon which relief could be granted. Where a court denies a prisoner's application to file an action without prepayment of fees on the grounds that the submitted complaint is frivolous, malicious or fails to state a claim upon which relief may be granted, the complaint has been "dismissed" for purposes of § 1915(g). O'Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008).
Here, defendants have demonstrated that plaintiff has suffered close to a dozen such strikes under § 1915(g). For example, plaintiff suffered a strike for purposes of § 1915(g) on January 5, 2004, when the district court dismissed Muhammad v. Harris, No. CIV 03-5586 MJJ (N.D. Cal.) for failure to state a claim. He suffered another strike on April 30, 2004, when the district court dismissed Muhammad v. Solis, No. CIV 04-0779 MJJ (N.D. Cal.) for failure to state a claim. Plaintiff suffered yet another strike on July 7, 2006, when the district court dismissed Muhammad v. United States of America, No. CIV S-06-2035 VAP (JWJ) (C.D. Cal.) for failure to state a claim. (Defs.' Mot. to Dismiss Exs. B, C & E.)
Plaintiff commenced this action on January 19, 2010, by filing a civil rights complaint together with an application to proceed in forma pauperis. As noted above, however, plaintiff filed this action after having brought three or more prior federal cases that were dismissed on the grounds specified in 28 U.S.C. § 1915(g). Under these circumstances, the undersigned will recommend that defendants' motion to revoke plaintiff's in forma pauperis status be granted and this action be dismissed, unless plaintiff pays the full statutory filing fee.*fn1
The court acknowledges that the Eleventh Circuit Court of Appeals has held that lower courts must dismiss an action and not allow a litigant to pay the filing fee after revoking his IFP status pursuant to § 1915(g). See Dupree v. Palmer, 284 F.3d 1234 (11th Cir. 2002). However, this court is not bound by that decision. More importantly, the Ninth Circuit Court of Appeals has made clear that issues surrounding the denial of an application to proceed in forma pauperis become moot upon a litigant's paying of the filing fee. See Lipscomb v. Madigan, 221 F.2d 798 (9th Cir. 1955); Funtanilla v. Tristan, No. 05-17096, 2007 WL 1663670 at *1 (9th Cir. Mar. 12, 2007) (reversing a district court's dismissal under 28 U.S.C. 1915(g) where plaintiff paid the filing fee in full prior to dismissal since "once [plaintiff's] fee was paid, the issue of his IFP status became moot")*fn2 ; see also Stringham v. Bick, No. CIV S-09-0286 MCE DAD P (E.D. Cal.) (vacating findings and recommendations to dismiss a civil rights action pursuant to § 1915(g) because plaintiff paid the filing fee); Hernandez v. Ventura County, No. CV 09-7838 GHK (JC), 2010 WL 3603491 at *6 (C.D. Cal. July 27, 2010) (recommending that defendants' motion to revoke plaintiff's in forma pauperis status be granted, plaintiff's in forma pauperis status be revoked, and the action be dismissed unless plaintiff pays the statutory filing fee); Johnson v. Tilton, No. CV 09-2862, 2010 WL 3782446 at *4 (C.D. Cal. July 22, 2010) (same). Accordingly, the undersigned will recommend that plaintiff be allowed to proceed in this cause of action if he pays the filing fee within the twenty-one-day deadline to file objections to these findings and recommendations.
Also pending before the court is plaintiff's motion for summary judgment and plaintiff's motion for class certification. As to plaintiff's motion for summary judgment, in light of the questions surrounding whether he will be allowed to proceed in this action, the court will deny his motion without prejudice as premature. On April 6, 2011, the court granted defendants' motion to modify the scheduling order and granted defendants ninety days to file a motion for summary judgment after the assigned district judge rules on the pending motion to dismiss. If plaintiff is allowed to move forward in this case, the court will grant plaintiff ninety days to file a motion for summary judgment as well.
As to plaintiff's motion for class certification, plaintiff is a non-lawyer proceeding without counsel. It is well established that a layperson cannot ordinarily represent the interests of a class. See McShane v. United States, 366 F.2d 286 (9th Cir. 1966). This rule becomes almost absolute where, as here, the putative class representative is incarcerated and proceeding pro se. Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975). In direct terms, plaintiff cannot "fairly and adequately protect the interests of the class," as required by Rule 23(a)(4) of the Federal Rules of Civil Procedure. See Martin v. Middendorf, 420 F. Supp. 779 (D.D.C. 1976). Accordingly, the court will deny plaintiff's motion for class certification.
IT IS HEREBY ORDERED that:
1. Plaintiff's motion for summary judgment (Doc. No. 26) is denied without prejudice to refiling within ninety days after the district judge rules on the pending motion to dismiss;
2. Plaintiff's motion for class certification (Doc. No. 44) is denied; and
3. The Clerk of the Court is directed to randomly assign a United States District Judge to this action.
IT IS HEREBY RECOMMENDED that:
1. Defendants' motion to revoke plaintiff's IFP status (Doc. No. 42) be granted;
2. Plaintiff's IFP status be revoked; and
3. This action be dismissed without prejudice, unless plaintiff pays the full statutory filing fee by the deadline for the filing of objections to these findings and recommendations.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within seven days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).