(PC) Uhuru v. Walters et al

Filing 18

ORDER signed by Senior District Judge Kimberly J. Mueller on 3/5/2025 NOT ADOPTING the 15 Findings and Recommendations and REFERRING matter back to the magistrate judge. (Deputy Clerk VLK)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Kohen Diallo Uhuru,

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Plaintiff,

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No. 2:23-cv-00200-KJM-DMC (PC)
ORDER

v.
Walters et al.,

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Defendants.

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Plaintiff, a state prisoner proceeding pro se, filed this civil rights action seeking relief

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under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided

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by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On June 25, 2024, the magistrate judge filed findings and recommendations, which were

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served on plaintiff, and which contained notice to all parties that any objections to the findings

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and recommendations were to be filed within 14 days after being served with the findings and

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recommendations. See F&Rs, ECF No. 15. Plaintiff filed an objection to the F&Rs. See

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Objections, ECF No. 16.

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The court presumes that any findings of fact are correct. See Orand v. United States,

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602 F.2d 207–08 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed de

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novo. See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007). (“[D]eterminations of law by

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the magistrate judge are reviewed de novo by both the district court and [the appellate] court

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. . . .”).

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this

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court has conducted a de novo review of this case. Having reviewed the file, the court declines to

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adopt the findings and recommendations.

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Plaintiff asks to proceed in forma pauperis, which magistrate judge recommends denying

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because plaintiff is a “three striker” under 28 U.S.C. § 1915(g). See F&Rs at 1–2. The magistrate

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judge cites plaintiff's prior cases that were dismissed for failure to state a viable claim and when

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amendment would have been futile, and then concludes plaintiff has not properly alleged

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imminent physical danger. See id. at 2. Plaintiff objects and claims he has alleged imminent

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danger. See Objections at 3–4. The issue here is whether plaintiff has properly alleged imminent

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physical danger, and the court concludes he has.

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Section 1915 does not permit a “three-striker” to proceed in forma pauperis unless he

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alleges an imminent danger of serious physical injury. Andrew v. Cervantes, 493 F.3d 1047, 1055

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(9th Cir. 2007). The Ninth Circuit has explained that “imminent” danger means an allegation of

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“an ongoing danger.” Id. at 1056 (citation omitted). As a result, an allegation that “prison officials

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continue with a practice that has injured [plaintiff] or others similarly situated in the past will

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satisfy the ‘ongoing danger’ standard.” Id. at 1057 (citation omitted). That allegation must be

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“both fairly traceable to unlawful conduct alleged in [the] complaint and redressable by the

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court.” Ray v. Lara, 31 F.4th 692, 701 (9th Cir. 2022). As the Ninth Circuit has recognized, the

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court “must liberally construe [a pro se plaintiff's] allegations.” See Andrews v. Cervantes,

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

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Plaintiff alleges dangers to his physical health owing to the poor ventilation at the prison

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where he is housed, due to defendants’ ADA violations. See FAC at 10, ECF No. 13. Plaintiff

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also claims other injuries from ADA violations including retaliatory deprivation of access to a

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medical walker or wheelchair. See id. The F&Rs do not address these allegations, stating only

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that plaintiff is bringing claims relating to religious practice rights. F&Rs at 2. The court finds

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the allegations in the complaint satisfy the imminent danger exception as plaintiff complains of
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several physical maladies that prison staff were either indifferent to or were allegedly trying to

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exacerbate. See Jackson v. Bick, 2017 WL 363017, at *2 (E.D. Cal. Jan 24, 2017). The court

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recognizes that plaintiff has not provided much detail to support these allegations, but the court

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construes the pro se plaintiff’s allegations liberally and finds the exception is met. See Andrews,

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493 F. 3d at 1055. Because the magistrate judge has not yet screened the complaint as required

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by the in forma pauperis statute, see 28 U.S.C. § 1915(e)(2), the court refers this matter back to

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the assigned magistrate judge.

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Accordingly, IT IS HEREBY ORDERED as follows:

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1. The findings and recommendations (ECF No. 15) are not adopted; and

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2. This matter is referred back to the magistrate judge for further pretrial proceedings

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consistent with this order.
IT IS SO ORDERED
DATED March 5, 2025.

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