Ali-Akbar v. McDonald et al

Filing 10

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 2/12/14 RECOMMENDING that 2 Motion to Proceed In Forma Pauperis be denied; and this action be dismissed without prejudice, unless plaintiff pays the full statutory filing fee ($350.00) by the deadline established below for the filing of objections to these findings and recommendations. Referred to Judge Troy L. Nunley; Objections to F&R due within 14 days.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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HAKIM ALI-AKBAR,

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No. 2:13-cv-0285 TLN DAD P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

MICHAEL MCDONALD et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C.
§ 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
28 U.S.C. § 1915(g)
The federal in forma pauperis statute includes a limitation on the number of actions in
which a prisoner can proceed in forma pauperis.
In no event shall a prisoner bring a civil action or appeal a judgment
in a civil action or proceeding under [§ 1915] 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.

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28 U.S.C. § 1915(g). “[T]he plain language of § 1915(g) requires that the court look at cases

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dismissed prior to the enactment of the [Prison Litigation Reform Act] to determine when a

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prisoner has used his three strikes.” Rodriguez v. Cook, 169 F.3d 1176, 1181 (9th Cir. 1999). In
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determining whether a dismissal counts as a “strike” under § 1915(g) the reviewing court should

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carefully evaluate and make an independent assessment of the dismissing court’s action and the

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reasons underlying it. Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013); Andrews v. King,

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398 F.3d 1113, 1121 (9th Cir. 2005).

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For purposes of § 1915(g), the court must determine whether plaintiff has, on three or

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more occasions prior to the filing of this new action, brought a civil action or appeal that was

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dismissed on the grounds that it was frivolous, malicious, or failed to state a claim upon which

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relief could be granted. Where a court denies a prisoner’s application to file an action without

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prepayment of fees on the grounds that the submitted complaint is frivolous, malicious or fails to

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state a claim upon which relief may be granted, the complaint has been “dismissed” for purposes

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of § 1915(g). O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008).

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DISCUSSION

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Here, plaintiff suffered his first strike for purposes of § 1915(g) on November 9, 2005,

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when this court dismissed Jones v. Vento, Case No. 1:04-cv-05802 OWW DLB P (E.D. Cal.) for

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failure to state a claim. Plaintiff suffered a second strike on March 28, 2007, when this court

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dismissed Jones v. California Forensics Medical Group, Case No. 1:04-cv-05218 LJO DLB PC

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(E.D. Cal.) for failure to state a claim. Finally, plaintiff suffered a third strike on June 26, 2012,

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when this court dismissed Jones v. California Supreme Court, Case No. 2:11-cv-3048 LKK GGH

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P (E.D. Cal.) both for failure to state a claim and as frivolous. Moreover, this court has

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previously recognized that plaintiff has incurred three strikes for purposes of § 1915(g) in

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granting a motion to revoke plaintiff’s IFP status in another action he filed in this court. See

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Hussein v. McDonald, Case No. 2:08-cv-03097 GEB EFB (E.D. Cal. Aug. 1, 2012).1

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There is an exception to the three-strike bar of § 1915(g), which allows a prisoner to use

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in forma pauperis status to bring a civil action despite three prior dismissals where the prisoner is

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under imminent danger of serious physical injury. See Andrews v. Cervantes, 493 F.3d 1047,

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1056-57 (9th Cir. 2007). In his complaint now before the court, plaintiff complains about an

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Plaintiff’s given name is Fredrick Jones, but he also uses the names Hakeem Abdullah Hussein,
Hakim Ali-Akbar, and Hakim Akbar-Jones.
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incident involving the alleged use of excessive force, a subsequently-issued prison rules violation

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charge, property confiscation, and a gang validation all of which took place in 2010. Plaintiff

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filed his original complaint in this case in 2013. Plaintiff has not alleged that he was “under

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imminent danger of serious physical injury” when he filed this action. Accordingly, the imminent

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danger exception under 28 U.S.C. § 1915(g) is not available to plaintiff in connection with this

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action.

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CONCLUSION

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. Plaintiff’s application to proceed in forma pauperis (Doc. No. 2) be denied; and

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2. This action be dismissed without prejudice, unless plaintiff pays the full statutory filing

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fee ($350.00) by the deadline established below for the filing of objections to these findings and

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recommendations.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, plaintiff may file written objections

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with the court and serve a copy on all parties. Such a document should be captioned “Objections

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to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file

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objections within the specified time may waive the right to appeal the District Court’s order.

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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: February 12, 2014

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DAD:9
ali0285.56

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