(PC) Uhuru v. Velasquez et al
Filing
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ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 1/05/21 DENYING 7 Motion to Appoint Counsel. Also, RECOMMENDING that plaintiffs motion to proceed in forma pauperis 2 be denied. The court find plaintiff accru ed three strikes under 28 U.S.C. § 1915(g) prior to filingthis action. The court order plaintiff to pay the $402 filing fee in order to proceed with this action. Motion 2 referred to Judge John A. Mendez. Objections due within 14 days.(Plummer, M)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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KOHEN DIALLO E. UHURU,
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Plaintiff,
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No. 2:20-cv-1267 JAM DB P
v.
ORDER AND FINDINGS AND
RECOMMENDATIONS
B. VELASQUEZ, et al.,
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Defendants.
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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42
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U.S.C. § 1983. Plaintiff claims that defendants have violated his right to religious freedom.
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Presently before the court is plaintiff’s motion to proceed in forma pauperis (ECF No. 2) and his
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motion to appoint counsel (ECF No. 7). For the reasons set forth below, the court will
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recommend that the motion to proceed in forma pauperis be denied and deny the motion to
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appoint counsel.
IN FORMA PAUPERIS
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I.
In Forma Pauperis Statue
The Prison Litigation Reform Act of 1995 (“PLRA”) permits a federal court to authorize
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the commencement and prosecution of any suit without prepayment of fees by a person who
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submits an affidavit indicating that the person is unable to pay such fees. However,
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[i]n no event shall a prisoner bring a civil action . . . [in forma
paupers] if the prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action or appeal
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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.
28 U.S.C. § 1915(g).
This “three strikes rule” was part of “a variety of reforms designed to filter out the bad
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claims [filed by prisoners] and facilitate consideration of the good.” Coleman v. Tollefson, 135
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S. Ct. 1759, 1762 (2015) (quoting Jones v. Bock, 549 U.S. 199, 204 (2007) (brackets in
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original)). If a prisoner has “three strikes” under § 1915(g), the prisoner is barred from
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proceeding in forma pauperis unless he meets the exception for imminent danger of serious
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physical injury. See Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007). To meet this
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exception, the complaint of a “three-strikes” prisoner must plausibly allege that the prisoner was
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faced with imminent danger of serious physical injury at the time his complaint was filed. See
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Williams v. Paramo, 775 F.3d 1182, 1189 (9th Cir. 2015); Andrews, 493 F.3d at 1055.
II.
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Has Plaintiff Accrued Three Strikes?
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A review of actions filed by plaintiff reveal that plaintiff is subject to 28 U.S.C. § 1915(g)
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and is precluded from proceeding in forma pauperis unless he was, at the time the complaint was
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filed, under imminent danger of serious physical injury. Judges have previously found that
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plaintiff has accrued at least three strikes. See Uhuru v. Eldridge, No. 2:19-cv-1119 KJN P, 2020
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WL 3100257 (E.D. Cal. June 11, 2020); Uhuru v. Paramo, No. 3:17-cv-0960 GPC BGS, 2017
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WL 2312224 (S.D. Cal. May 26, 2017). The court takes judicial notice of those cases and
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plaintiff’s prior filings described therein. MCIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th
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Cir. 1986) (A court may take judicial notice of its own records and the records of other courts).
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Those cases include: (1) Diallo v. Yarborough, No. 2:03-cv-5401 JVS VBK (C.D. Cal. Feb. 5,
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2004) (granting defendants’ motion to dismiss and stating, “[t]he allegations in the Complaint
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[were] insufficient to state a claim against each individual defendant . . .”); (2) Diallo v.
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Moskowitz, No. 2:07-cv-7109 JVS VBK (C.D. Cal. June 1, 2009) (granting defendants’ motion
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to dismiss and dismissing the complaint with prejudice); (3) Diallo v. Greenman, No. 2:07-cv-
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2937 JVS VBK (C.D. Cal. Sept. 21, 2009) (dismissing the amended complaint with prejudice
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upon finding the allegations insufficient to state a federal civil rights claim). The strikes
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described all occurred prior to plaintiff’s initiation of the present action on June 24, 2020.
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III.
Does Plaintiff Meet the Imminent Danger Exception?
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Because plaintiff has accrued three strikes, plaintiff is precluded from proceeding in forma
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pauperis in this action unless he is “under imminent danger of serious physical injury.” 28 U.S.C.
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§ 1915(g). The availability of the imminent danger exception turns on the conditions a prisoner
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faced at the time the complaint was filed, not at some earlier or later time. See Andrews, 493
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F.3d at 1053. “[A]ssertions of imminent danger of less obviously injurious practices may be
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rejected as overly speculative or fanciful.” Id. at 1057 n.11. Imminent danger of serious physical
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injury must be a real, present threat, not merely speculative or hypothetical. To meet his burden
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under § 1915(g), an inmate must provide “specific fact allegations of ongoing serious physical
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injury, or a pattern of misconduct evidencing the likelihood of imminent serious physical injury.”
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Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). “Vague and utterly conclusory
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assertions” of harm are insufficient. White v. Colorado, 157 F.3d 1226, 1231-32 (10th Cir.
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1998). That is, the “imminent danger” exception is available “for genuine emergencies,” where
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“time is pressing” and “a threat . . . is real and proximate.” Lewis v. Sullivan, 279 F.3d 526, 531
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(7th Cir. 2002).
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The court has reviewed plaintiff’s complaint. (ECF No. 1.) Therein plaintiff alleges that
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defendants have interfered with his right to practice his religion, which involves solitary in-cell
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worship. (Id. at 4.) Plaintiff also states that he is an individual with a medical and mental health
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defect and has been excluded from getting fresh air and outdoor exercise. (Id. at 5.) Plaintiff
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claims he has been denied his right to freely exercise his religion and he has lost privileges as a
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result of his punishments. (Id. at 6.)
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Plaintiff has additionally alleged in a conclusory fashion that he is under imminent danger
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due to the COVID-19 pandemic. (Id. at 5.) However, the complaint does not contain specific
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allegations stating how the current conditions show that he is in imminent danger. For example,
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plaintiff alleges that he has been deprived of outdoor exercise but does not specify how long he
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has been denied outdoor exercise.
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Plaintiff’s conclusory allegations fail to show that he was under imminent threat of serious
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physical injury at the time he filed the complaint. Accordingly, the court finds that plaintiff does
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not meet the imminent danger exception described in § 1915(g) and should only be allowed to
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proceed with this action if he pays the filing fee.
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MOTION TO APPOINT COUNSEL
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Plaintiff has filed a motion for the appointment of counsel. (ECF No. 7.) Therein, he
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argues counsel should be appointed because he is unable to afford counsel, his imprisonment will
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limit his ability to litigate, the issues in this case are complex, and a trial will likely involve
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conflicting testimony and counsel would be better able to cross examine witnesses. (Id. at 1-2.)
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The United States Supreme Court has ruled that district courts lack authority to require
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counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490
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U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the
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voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d
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1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).
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The test for exceptional circumstances requires the court to evaluate the plaintiff’s
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likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in
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light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328,
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1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances
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common to most prisoners, such as lack of legal education and limited law library access, do not
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establish exceptional circumstances that would warrant a request for voluntary assistance of
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counsel.
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In the present case, the court does not find the required exceptional circumstances.
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Plaintiff’s arguments in support of his motion allege nothing more than circumstances common to
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most inmates. Additionally, at this stage of the proceedings the court is unable to determine
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plaintiff’s likelihood of success on the merits. Accordingly, the court will deny the motion
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without prejudice.
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CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that plaintiff’s motion for the
appointment of counsel (ECF No. 7) is denied.
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IT IS HEREBY RECOMMENDED that:
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1. Plaintiff’s motion to proceed in forma pauperis (ECF No. 2) be denied;
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2. The court find plaintiff accrued three strikes under 28 U.S.C. § 1915(g) prior to filing
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this action; and
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3. The court order plaintiff to pay the $402 filing fee in order to proceed with this action.
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These findings and recommendations will be 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)(1). 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. The document should be captioned “Objections to Magistrate Judge’s Findings
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and Recommendations.” Plaintiff is advised that failure to file objections within the specified
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time may result in a waiver of the right to appeal the district court’s order. Martinez v. Ylst, 951
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F.2d 1153 (9th Cir. 1991).
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Dated: January 5, 2021
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DB:1/Orders/Prisoner/Civil.Rights/uhur1267.3strikes+31
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