Tahee Abd' Rasheed v. Harrington et al

Filing 3

ORDER DISMISSING Action for Failure to State a Claim and for Failure to Submit Filing Fee signed by District Judge Lawrence J. O'Neill on 09/04/2009. CASE CLOSED. (Flores, E)

1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 Plaintiff, 11 v. 12 WARDEN HARRINGTON, et al., 13 Defendants. 14 15 Plaintiff Tahee A. Rasheed, also known as James E. Smith, is a state prisoner proceeding pro 16 se. On August 31, 2009, Plaintiff filed this action seeking relief pursuant to 28 U.S.C. § 1651 (the 17 All Writs Act) and Federal Rule of Civil Procedure 65. Plaintiff seeks an injunction requiring 18 Warden Harrington, Correctional Counselor Ullrich, and the trust office at Kern Valley State Prison 19 to mail $22,500.00 to Lillian Smith, Hollie Garrett, and Talib S. Mujahid. 20 The All Writs Act does not confer original jurisdiction on federal courts. Syngenta Crop 21 Protection, Inc. v. Henson, 537 U.S. 28, 29, 123 S.Ct. 366, 368 (2002). In the event that jurisdiction 22 is properly pled, "injunctive relief under the All Writs Act is to be used `sparingly and only in the 23 most critical and exigent circumstances.'" Brown v. Gilmore, 533 U.S. 1301, 122 S.Ct. 1, 2 (2001) 24 (quoting Ohio Citizens for Responsible Energy, Inc. v. NRC, 479 U.S. 1312, 1313, 107 S.Ct. 682 25 (1986) (internal quotations and citation omitted)). "Such an injunction is appropriate only if `the 26 legal rights at issue are indisputably clear.'" Id. (quoting Ohio Citizens for Responsible Enegery, 27 479 U.S. at 1313 (internal quotations and citation omitted)). 28 1 / (Doc. 1) TAHEE A. RASHEED aka JAMES E. SMITH, CASE NO. 1:09-cv-01540-LJO-SMS PC ORDER DISMISSING ACTION FOR FAILURE TO STATE A CLAIM AND FOR FAILURE TO SUBMIT FILING FEE

UNITED STATES DISTRICT COURT

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

There is no jurisdictional basis for Plaintiff's request for relief. Plaintiff is not entitled to any relief under the All Writs Act, and this action shall be dismissed for failure to state a claim. 28 U.S.C. § 1915A. Further, Plaintiff is subject to 28 U.S.C. § 1915(g), which provides that "[i]n no event shall a prisoner bring a civil action . . . under this section 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."1 Plaintiff is not eligible to proceed in forma pauperis in this action because he does meet the imminent danger exception, Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007), and Plaintiff did not submit the $350.00 filing fee with his complaint. Based on the foregoing, this action is HEREBY DISMISSED for failure to state a claim and for failure to submit the filing fee. 28 U.S.C. § 1915A; 28 U.S.C. § 1915(g).

IT IS SO ORDERED. Dated: b9ed48 September 4, 2009 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE

Among the dismissals suffered by Plaintiff that count as strikes under 1915(g) are case numbers 3:06-cv0 5 9 9 2 -S I Smith v. Holm (N.D. Cal.) (dismissed 01/22/2007 for failure to state a claim); 1:07-cv-00509-LJO-SMS S m ith v. Scribner (E.D. Cal.) (dismissed 05/04/2007 for frivolousness, maliciousness, and failure to state a claim); 1 :0 6 -c v -0 0 3 1 0 -A W I -N E W (DLB) PC (E.D. Cal.) (dismissed 05/09/2007 for failure to state a claim); and 1:07-cv0 0 5 3 1 - A W I - S M S Smith v. Social Sec. Admin. Office, Employees (E.D. Cal.) (dismissed 05/09/2007 for failure to s ta t e a claim).

1

2