(PC) Uhuru v. Mancusi ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KOHEN DIALLO UHURU, No. 2: 20-cv-2088 KJM KJN P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 MANCUSI, et al., 15 Defendants. 16 17 Introduction 18 Plaintiff is a state prisoner, proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. 19 § 1983, and requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This 20 proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 21 On November 17, 2020, plaintiff’s complaint was dismissed with leave to amend. The 22 court deferred consideration of plaintiff’s request to proceed in forma pauperis, and cautioned 23 plaintiff that he would be precluded from proceeding in forma pauperis unless he alleged facts 24 demonstrating that at the time he filed this action he was under imminent danger of serious 25 physical injury. (ECF No. 7 at 9.) Following an extension of time, plaintiff filed an amended 26 complaint. As set forth below, the undersigned recommends that plaintiff’s application to 27 proceed in forma pauperis be denied. 28 //// 1 Section 28 U.S.C. § 1915(g) 2 The Prison Litigation Reform Act of 1995 (“PLRA”) permits a federal court to authorize 3 the commencement and prosecution of any suit without prepayment of fees by a person who 4 submits an affidavit indicating that the person is unable to pay such fees. However, a prisoner 5 may not proceed in forma pauperis 6 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 7 the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may 8 be granted, unless the prisoner is under imminent danger of serious physical injury. 9 10 28 U.S.C. § 1915(g). Such rule, known as the “three strikes rule,” was “designed to filter out the 11 bad claims [filed by prisoners] and facilitate consideration of the good.” Coleman v. Tollefson, 12 135 S. Ct. 1759, 1762 (2015) (quoting Jones v. Bock, 549 U.S. 199, 204 (2007). If a prisoner has 13 “three strikes” under § 1915(g), the prisoner is barred from proceeding in forma pauperis unless 14 he meets the exception for imminent danger of serious physical injury. See Andrews v. 15 Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007). To meet this exception, the complaint of a 16 “three-strikes” prisoner must plausibly allege that the prisoner was faced with imminent danger of 17 serious physical injury at the time his complaint was filed. See Williams v. Paramo, 775 F.3d 18 1182, 1189 (9th Cir. 2015); Andrews, 493 F.3d at 1055. 19 Review of court records reveals that on at least three occasions lawsuits filed by the 20 plaintiff have been dismissed on the grounds that they were frivolous or malicious or failed to 21 state a claim upon which relief may be granted.1 Courts previously found plaintiff accrued at 22 least three strikes. See Uhuru v. Diaz, No. 20-56332 (9th Cir. Apr. 16, 2021); Uhuru v. Eldridge, 23 No. 20-17501 (9th Cir. Mar. 10, 2021); Uhuru v. Chaplain Hadjal, No. 20-55550 (9th Cir. July 24 22, 2020); Uhuru v. Eldridge, No. 2:19-cv-1119 KJN P, 2020 WL 3100257 (E.D. Cal. June 11, 25 2020); Uhuru v. Paramo, No. 3:17-cv-0960 GPC BGS, 2017 WL 2312224 (S.D. Cal. May 26, 26 1 A court may take judicial notice of court records. See, e.g., Bennett v. Medtronic, Inc., 285 27 F.3d 801, 803 n.2 (9th Cir. 2002) (“[W]e may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to 28 matters at issue”) (internal quotation omitted). 1 2017). Prior to the date plaintiff filed this action on October 19, 2020, the following cases filed 2 by plaintiff were dismissed as set forth below: 3 1. Diallo v. Yarborough, Case No. 2:03-cv-05401-JVS-VBK (C.D. Cal. February 5, 4 2004) (granting defendants’ motion to dismiss finding plaintiff’s allegations were insufficient to 5 state a claim upon which relief can be granted); adopted April 16, 2004. 6 2. Diallo v. Moskowitz, Case No. 2:07-cv-07109-JVS-VBK (C.D. Cal. June 1, 2009) 7 (granting defendants’ motion to dismiss and dismissing the complaint with prejudice); adopted 8 July 6, 2009. 9 3. Diallo v. Greenman, Case No. 2:07-cv-02937-JVS-VBK (C.D. Cal. Sept. 21, 2009) 10 (finding allegations in amended complaint failed to state a federal civil rights claim, and 11 dismissing amended complaint with prejudice); adopted Oct. 27, 2009. 12 4. Uhuru v. Spagnola, Case No. 2:09-cv-05582-JVS-VBK (C.D. Cal.). In this case, 13 plaintiff’s complaint was dismissed for failure to state a claim, with leave to amend. Plaintiff 14 failed to amend, and this case was subsequently dismissed based on plaintiff’s failure to amend. 15 See id., ECF No. 5 at 5 n.1. “[W]hen (1) a district court dismisses a complaint on the ground that 16 it fails to state a claim, and (2) the court grants leave to amend, and (3) the plaintiff then fails to 17 file an amended complaint, the dismissal counts as a strike under § 1915(g).” Harris v. Mangum, 18 863 F.3d 1133, 1143 (9th Cir. 2017). Therefore, Uhuru v. Spagnola, Case No. 2:09-cv-05582- 19 JVS-VBK also constitutes a strike under 28 U.S.C. § 1915(g). 20 Such four district court cases constitute strikes that were final prior to the date plaintiff 21 filed this action. Therefore, the undersigned concludes that plaintiff sustained three strikes under 22 28 U.S.C. § 1915(g). 23 Imminent Danger? 24 Because plaintiff sustained three strikes, plaintiff is precluded from proceeding in forma 25 pauperis in this action unless he is “under imminent danger of serious physical injury.” 28 U.S.C. 26 § 1915(g). The availability of the imminent danger exception turns on the conditions a prisoner 27 faced at the time the complaint was filed, not at some earlier or later time. See Andrews, 493 28 F.3d at 1053. “[A]ssertions of imminent danger of less obviously injurious practices may be 1 rejected as overly speculative or fanciful.” Id. at 1057 n.11. “Imminent danger of serious 2 physical injury must be a real, present threat, not merely speculative or hypothetical.” Blackman 3 v. Mjening, 2016 WL 5815905, at *1 (E.D. Cal. Oct. 4, 2016). To meet his burden under 4 § 1915(g), an inmate must provide “specific fact allegations of ongoing serious physical injury, or 5 a pattern of misconduct evidencing the likelihood of imminent serious physical injury.” Martin v. 6 Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). “Vague and utterly conclusory assertions” of harm 7 are insufficient. White v. Colorado, 157 F.3d 1226, 1231-32 (10th Cir. 1998). That is, the 8 “imminent danger” exception is available “for genuine emergencies,” where “time is pressing” 9 and “a threat . . . is real and proximate.” Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). 10 Plaintiff’s Allegations 11 Plaintiff’s amended complaint contains three claims for relief. As discussed below, the 12 undersigned finds that none of these claims for relief demonstrates that plaintiff is under 13 imminent danger of serious physical injury. 14 In his first claim, plaintiff alleges violations of his right to exercise his religion and 15 RLUIPA.2 Such allegations do not demonstrate that plaintiff is under imminent danger of serious 16 physical injury. 17 In his second claim, plaintiff marks multiple causes of action: disciplinary proceedings; 18 exercise of religion; medical care; retaliation; and other - discrimination based on religion and 19 race; denial of equal protection. (ECF No. 13 at 5.) He alleges that defendants denied plaintiff 20 confidential meetings with his psychiatrist in violation of HIPAA (the Health Insurance 21 Portability and Accountability Act of 1996), by having third and fourth parties in the room during 22 his telemed appointments, which exacerbates plaintiff’s mental illness and paranoia. Defendants 23 denied release of information from plaintiff’s psychotherapy notes and mental health treatment. 24 He claims he continues to decompensate from five months of no outside exercise. He has been 25 denied participation in, or dissemination of, “School of the Prophets” curriculum. Defendants 26 controverted plaintiff’s “Harvey waiver” under People v. Harvey, 25 Cal.3d 754 (1979). (ECF 27 28 2 Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc-1. 1 No. 13 at 5.) Plaintiff contends defendants refuse to treat his post-slavery trauma syndrome, 2 PTSD, and falsely claim plaintiff is under PC 1168(b), when he is really under PC 1170 (DSL). 3 In his third claim, plaintiff marks the following claims: basic necessities; threat to safety; 4 exercise of religion; and retaliation. (ECF No. 13 at 6.) He alleges that over the last five months 5 he has been denied sunlight and outside exercise. Defendants denied plaintiff the ability to 6 practice his Nubian Hebrew Israelite religion, and were deliberately indifferent to plaintiff’s 7 exposure to a serious communicable disease. 8 Plaintiff’s second and third claims also fail to provide specific allegations indicating how 9 he was in imminent danger of serious physical injury at the time he filed this complaint on 10 October 19, 2020. Plaintiff alleges that the lack of exercise negatively impacted his mental 11 health, but fails to set forth any facts concerning any serious physical injury, threatened or 12 otherwise. In addition, plaintiff’s allegations in this case are similar to those made in two prior 13 cases not mentioned above, but also filed in this court a few months before this one. See Uhuru 14 v. Velaszquez, No. 2:20-cv-1267 JAM DB P (Aug. 12, 2020), and Uhuru v. Rao, 2:20-cv-1613 15 WBS DB P (June 24, 2020). In those similar, previously filed cases, plaintiff also alleged a lack 16 of fresh air and outdoor exercise, together with his claims he was denied his right to freely 17 exercise his religion. Although plaintiff named different defendants in these three cases, they 18 otherwise share many similar conclusory allegations. In his two prior cases, as in this one, 19 plaintiff fails to set forth specific facts to show he was under a threat of imminent danger of 20 serious physical injury. 21 Finally, in the title of plaintiff’s pleading, as he did in his original complaint, plaintiff 22 writes: “imminent danger of injury with unusual and exceptional circumstances from COVID-19 23 pandemic; quarantine isolation; deliberate indifference; religious discrimination.” (ECF No. 13 at 24 1.) Despite the court’s prior explanation that plaintiff must address and support his claim that he 25 faced imminent danger at the time he filed this action (ECF No. 7 at 9), plaintiff provides no 26 specific facts in his pleading concerning the pandemic other than a vague reference to exposure to 27 a serious communicable disease. 28 //// ] Therefore, plaintiff does not meet the imminent danger exception described in 28 U.S.C. 2 | § 1915(g), and may proceed in this action only if he first pays the filing fee. Plaintiff is cautioned 3 || that failure to pay the filing fee will result in the dismissal of this action. 4 Accordingly, IT IS HEREBY RECOMMENDED that: 5 1. Plaintiffs application to proceed in forma pauperis (ECF No. 2) be denied; and 6 2. Plaintiff be ordered to pay the $402.00 filing fee within thirty days of any order by the 7 || district court adopting these findings and recommendations. 8 These findings and recommendations are submitted to the United States District Judge 9 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 10 || after being served with these findings and recommendations, plaintiff may file written objections 11 || with the court and serve a copy on all parties. Such a document should be captioned 12 || “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that 13 || failure to file objections within the specified time may waive the right to appeal the District 14 || Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 15 || Dated: June 25, 2021 6 Aectl Aharon 17 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 18 19 fewAshur2088.1915¢ 20 21 22 23 24 25 26 27 28