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Uhuru v. Paramo

United States District Court, S.D. California

May 25, 2017

KOHEN DIALLO UHURU, aka DIALLO E. UHURU, CDCR #P-73824, Plaintiff,
v.
DANIEL PARAMO, et al., Defendants.

         ORDER: 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)

          Hon. Gonzalo P. Curiel, United States District Judge

         KOHEN 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).

         While 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.)

         Plaintiff 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).

         I. Motion to Proceed IFP

         “All 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 physical injury.

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”).

         “Pursuant 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.

         “Strikes 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)).

         Once a 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.”).

         II. Application to Plaintiff

         As an 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. ยง 1915(g)). While Plaintiff names RJD prison officials as Defendants, and thus the Court presumes that his ...


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