Alkebu-Lan v. Dickinson

Filing 53

ORDER signed by Judge Lawrence K. Karlton on 3/31/2014 ORDERING that Plaintiff's 40 motion for extension of time is GRANTED. Plaintiff's 4/16/2013 opposition to defendants' motion to revoke plaintiff's in forma pauperis status is deemed timely filed. Defendants' 45 motion for reconsideration is GRANTED. Defendants' 37 motion to revoke plaintiff's in forma pauperis status is GRANTED. Plaintiff is GRANTED thirty days from the date of this order in which to pay the $350.00 filing fee for this action. Failure to pay the filing fee as required by this order will result in the dismissal of this action. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SHAI ALKEBU-LAN,

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Plaintiff,

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No. CIV. S-11-291 LKK/KJN P

v.

ORDER

K. DICKINSON, et al.,

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Defendants.

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Defendants have filed a motion for reconsideration of this

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court’s July 10, 2013 order (ECF No. 44) declining to adopt the

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magistrate judge’s April 16, 2013 finding, made in connection

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with consideration of defendants’ March 6, 2013 motion to revoke

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plaintiff’s in forma pauperis status, that plaintiff has failed

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to demonstrate that he was “under imminent danger of serious

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physical injury” within the meaning of 28 U.S.C. § 1915(g) when

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he filed the instant action.

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defendants have filed a reply.1

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Plaintiff opposes the motion, and

Also pending before the court is plaintiff’s April 15, 2013 motion for
extension of time to respond to defendants’ motion to revoke plaintiff’s in
forma pauperis status. Plaintiff’s motion for extension of time was filed on
April 15, 2013, the day before the magistrate judge issued findings and
recommendations on defendants’ motion, and plaintiff filed his opposition

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Defendants seek reconsideration of the court’s July 10, 2013

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order, contending that the court failed to address a dispositive

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argument previously raised by defendants in their reply to

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plaintiff’s objections to the magistrate judge’s findings and

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recommendations.2

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contend plaintiff’s original complaint cannot plausibly suggest

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plaintiff was in “imminent danger of serious physical injury” at

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the time the action was filed because the challenged events

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occurred at California Medical Facility (CMF) and plaintiff had

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been transferred to California State Prison-Solano (CSP-Solano)

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before he filed this action.

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Specifically, there and here defendants

At issue is whether the facts alleged in plaintiff’s

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original complaint are sufficient to satisfy the requirements of

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28 U.S.C. §1915(g), which prevent inmates who have had three or

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more prior actions or appeals dismissed as frivolous, malicious,

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or for failure to state a claim upon relief may be granted, from

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April 16, 2013, the same day the magistrate judge issued findings and
recommendations on the motion, although plaintiff’s opposition was not entered
on the docket until April 17, 2013. Good cause appearing, plaintiff’s motion
for extension of time is granted nunc pro tunc and his opposition, which has
been considered by this court as part of its de novo review of the record,
deemed timely filed. The primary question raised by plaintiff’s opposition is
whether a dismissal pursuant to Heck v. Humphrey, 512 U.S. 477 (1994) is a
strike under 28 U.S.C. § 1915(g). This question has been expressly reserved
by the United States Court of Appeals for the Ninth Circuit. See Andrews v.
Cervantes, 493 F.3d 1047, 1052 n.2 (9th Cir. 2007). The court need not reach
this question here, however, because the magistrate judge found four previous
dismissals qualified as 1915(g) strikes. See Findings and Recommendations
filed April 16, 2013 (ECF No. 41) at 3-4. Only one of those dismissals, Case
No. 4:05-cv-5069 CW PR P, implicates the question of whether a dismissal
pursuant to Heck v. Humphrey, supra constitutes at § 1915(g) strike.
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Defendants rely on Fed. R. Civ. P. 60(b)(6) and cite 389 Orange St. Partners
v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999) for the proposition that Fed. R.
Civ. P. 60(b)(6) permits reconsideration of an order “when there is clear
error.” Defs. Mot. Recon., filed July 17, 2013 (ECF No. 45-1) at 2. The
cited case involved a motion under Fed. R. Civ. P. 59(e) to alter or amend a
judgment, not Fed. R. Civ. P. 60(b)(6). See 389 Orange St. Partners, 179 F.3d
at 665.

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proceeding in forma pauperis “unless the prisoner is under

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imminent danger of serious physical injury.”

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This “exception applies if the complaint makes a plausible

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allegation that the prisoner faced ‘imminent danger of serious

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physical injury’ at the time of filing.”

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493 F.3d 1047, 1055 (9th Cir. 2007).

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28 U.S.C. §1915(g).

Andrews v. Cervantes,

The allegations of imminent harm in the original complaint
are as follows:

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From 11-25-2008 to present petitioner’s life
has been under imminent danger of serious
physical injury . . . whereas Lt. Pulsipher,
J., Sergeant Jones, S., and Guard Brown, R.
et al. falsified a CDC 115, RVR Log # CMF 01P-1208-010 which they knew not to be true;
thereby, subjected petitioner to a series of
psychological
and
physical
tortures,
including
lacing
his
canteen
with
hallucinogenic [sic] drugs which cause mental
health
issues/placement,
near
death
and
stalking/threatening petitioner’s family.

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Complaint filed September 14, 2010 (ECF No. 1) at 3.

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complained of occurred at California Medical Facility (CMF);

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plaintiff was incarcerated at California State Prison-Solano

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(CSP-Solano) when he filed this action.

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1), passim.

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three defendants who allegedly committed the acts complained of,

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all of whom worked at CMF, could plausibly have been continuing

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those acts at the time the complaint was filed.3

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The events

See Complaint (ECF No.

Although CSP-Solano is proximate to CMF, none of the

Moreover, the

In his response to defendants’ reply in support of their motion for
reconsideration, plaintiff alleges that “[u]pon transfer from CMF to CMC-East
to CSP-Solano, defendants (Lt. J. Pulsipher) conducted illegal, intimidating,
threats on his life, surveillance, stalking tactics and sealed legal mail
tampering of documents to the courts.” Pls. Response filed August 23, 2013
(ECF No. 48) at 2. These vague and conclusory contentions are not included as
allegations in the original complaint and in any event are insufficient to

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allegations of the complaint do not suggest that those actions

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continued into his placement at CSP-Solano.4

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For the foregoing reasons, the court finds that plaintiff

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has failed to adequately allege that he was faced with “imminent

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danger of serious physical injury” at the time he filed this

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action.

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be granted, plaintiff’s in forma pauperis status will be revoked,

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and this action will not proceed further unless plaintiff pays

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the $350.00 filing for this action.

Accordingly, defendants’ motion for reconsideration will

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In accordance with the above, IT IS HEREBY ORDERED that:

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1.

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Plaintiff’s April 15, 2013 motion for extension of time

(ECF No. 40) is granted;

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2.

Plaintiff’s April 16, 2013 opposition to defendants’

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motion to revoke plaintiff’s in forma pauperis status is deemed

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timely filed;

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3.

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(ECF No. 45) is granted;

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4.

Defendants’ March 6, 2013 motion to revoke plaintiff’s

in forma pauperis status is granted;

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Defendants’ July 17, 2013 motion for reconsideration

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Plaintiff is granted thirty days from the date of this

order in which to pay the $350.00 filing fee for this action; and

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Failure to pay the filing fee as required by this order

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will result in the dismissal of this action.

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support a finding that plaintiff was under imminent threat of physical injury
when he filed the complaint.
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Allegations of subsequent complaints suggest that plaintiff was placed on
orders for involuntary medication and transferred to an inpatient mental
health program prior to his transfer to CSP-Solano. See, e.g., First Amended
Complaint, filed July 16, 2012.

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DATED:

March 31, 2014.

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