United States District Court, S.D. California
KOHEN DIALLO UHURU, aka DIALLO E. UHURU, CDCR #P-73824, Plaintiff,
DANIEL PARAMO, et al., Defendants.
1) DENYING MOTION TO PROCEED IN FORMA PAUPERIS AS BARRED BY
28 U.S.C. § 1915(G) [ECF NO. 2] AND (2) DISMISSING CIVIL
ACTION WITHOUT PREJUDICE FOR FAILURE TO PAY FILING FEE
REQUIRED BY 28 U.S.C. § 1914(A) AND FOR FAILURE TO STATE
A CLAIM PURSUANT TO 28 U.S.C. § 1915A(B)(1)
Gonzalo P. Curiel, United States District Judge
DIALLO UHURU (“Plaintiff”), also known as Diallo
E. Uhuru, currently incarcerated at the California Men's
Colony (“CMC”) located in San Luis Obispo,
California, and proceeding pro se, has filed a civil rights
complaint pursuant to 42 U.S.C. § 1993 (ECF No. 1).
Plaintiff was housed at CMC at the time he filed this action,
the named Defendants are prison officials at the Richard J.
Donovan Correctional Facility (“RJD”).
(See Compl. at 1-2.) Plaintiff's Complaint
contains very few factual allegations. He alleges that
“prison officials knew about the Plaintiff's
serious medical/mental health needs” and
“willfully failed to respond to it.”
(Id. at 5.) In addition, he alleges Defendants
denied him the “right to practice my Nubian Hebrew
Israelite religion.” (Id.) There are no other
allegations in his Complaint, instead he directs the Court to
“see attachments and exhibits.” (Id.)
All the exhibits appear to relate to his religious claims and
he does not attach any exhibits relating to medical or mental
health issues. (Id. at 1-1, 1-15; 2-1, 1-7; 3-1,
1-8). Plaintiff seeks “monetary and punitive
compensation for damages inclusive with declarative and
injunctive relief.” (Id. at 6.)
has not prepaid the civil filing fee required by 28 U.S.C.
§ 1914(a); instead, he has filed a Motion to Proceed
In Forma Pauperis (“IFP”) pursuant to 28
U.S.C. § 1915(a) (ECF No. 2).
Motion to Proceed IFP
persons, not just prisoners, may seek IFP status.”
Moore v. Maricopa County Sheriff's
Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners
like Plaintiff, however, “face an additional
hurdle.” Id. In addition to requiring
prisoners to “pay the full amount of a filing fee,
” in “monthly installments” or
“increments” as provided by 28 U.S.C. §
1915(a)(3)(b), Bruce v. Samuels, ___ U.S. ___, 136
S.Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d
1182, 1185 (9th Cir. 2015), the Prison Litigation Reform Act
(“PLRA”) amended section 1915 to altogether
preclude the privilege to proceed IFP:
. . . 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 States that was
dismissed on the grounds that it is frivolous, malicious, or
fails to state a claim upon which relief can be granted,
unless the prisoner is under imminent danger of serious
28 U.S.C. § 1915(g). “This subdivision is commonly
known as the ‘three strikes' provision.”
Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir.
2005) (hereafter “Andrews”).
to § 1915(g), a prisoner with three strikes or more
cannot proceed IFP.” Id.; see also Andrews
v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007)
(hereafter “Cervantes”) (under the PLRA,
“[p]risoners who have repeatedly brought unsuccessful
suits may entirely be barred from IFP status under the three
strikes rule[.]”). The objective of the PLRA is to
further “the congressional goal of reducing frivolous
prisoner litigation in federal court.” Tierney v.
Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997).
“[S]ection 1915(g)'s cap on prior dismissed claims
applies to claims dismissed both before and after the
statute's effective date.” Id. at 1311.
are prior cases or appeals, brought while the plaintiff was a
prisoner, which were dismissed on the ground that they were
frivolous, malicious, or failed to state a claim, ”
Andrews, 398 F.3d at 1116 n.1 (internal quotations
omitted), “even if the district court styles such
dismissal as a denial of the prisoner's application to
file the action without prepayment of the full filing
fee.” O'Neal v. Price, 531 F.3d 1146, 1153
(9th Cir. 2008); see also El-Shaddai v. Zamora, 833
F.3d 1036, 1042 (9th Cir. Aug. 12, 2016) (noting that when
court “review[s] a dismissal to determine whether it
counts as a strike, the style of the dismissal or the
procedural posture is immaterial. Instead, the central
question is whether the dismissal ‘rang the PLRA bells
of frivolous, malicious, or failure to state a
claim.'”) (quoting Blakely v. Wards, 738
F.3d 607, 615 (4th Cir. 2013)).
prisoner has accumulated three strikes, he is simply
prohibited by section 1915(g) from pursuing any other IFP
civil action or appeal in federal court unless he alleges he
is facing “imminent danger of serious physical
injury.” See 28 U.S.C. § 1915(g);
Cervantes, 493 F.3d at 1051-52 (noting §
1915(g)'s exception for IFP complaints which
“make a plausible allegation that the prisoner faced
‘imminent danger of serious physical injury' at the
time of filing.”).
Application to Plaintiff
initial matter, the Court has carefully reviewed
Plaintiff's Complaint and has ascertained that it does
not contain any “plausible allegations” to
suggest he “faced ‘imminent danger of serious
physical injury' at the time of filing.”
Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C.
§ 1915(g)). While Plaintiff names RJD prison officials
as Defendants, and thus the Court presumes that his