Alkebu-lan v. Kane

Filing 17

ORDER DISMISSING CASE. Signed by Judge Claudia Wilken on 8/25/09. (scc, COURT STAFF) (Filed on 8/25/2009)

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SHAI ALKEBU-LAN, ) No. C 06-5991 CW (PR) ) Plaintiff, ) ORDER OF DISMISSAL ) v. ) ) A. P. KANE, Warden, et al., ) ) Defendants. ) ___________________________ ) BACKGROUND Plaintiff Shai Alkebu-lan, a state prisoner currently

13 incarcerated at the California Men's Colony State Prison, filed a 14 civil rights complaint pursuant to 42 U.S.C. § 1983 and an 15 application for in forma pauperis (IFP) status. The events giving

16 rise to the complaint occurred while Plaintiff was housed at the 17 Correctional Training Facility (CTF). He raised claims against CTF

18 prison officials for the use of excessive force and for a due 19 process violation stemming from the alleged denial of his 20 visitation rights with his children and their mother, Memri Tagle. 21 In an Order dated June 11, 2007, the Court found Plaintiff's

22 excessive force claim cognizable; however, it was dismissed with 23 leave to amend because Plaintiff had failed to allege with 24 specificity which Defendants proximately caused the violations of 25 his constitutional rights. 26 without prejudice. 27 28 On July 26, 2007, Plaintiff filed an amended complaint. Because Plaintiff complied with the requirements set forth in Plaintiff's IFP application was denied

1 its June 11, 2007 Order by amending his complaint, the Court 2 reviewed his IFP application anew. In an Order dated June 4, 2009,

3 because Plaintiff had "on 3 or more prior occasions, while 4 incarcerated or detained in any facility, brought an action or 5 appeal in a court of the United States that was dismissed on the 6 grounds that it is frivolous, malicious, or fails to state a claim 7 upon which relief may be granted," and had not alleged that he was 8 under imminent danger of serious physical injury, the Court ordered 9 him to show cause why his actions should not be dismissed without 10 prejudice to bringing in a paid complaint. United States District Court For the Northern District of California 28 U.S.C. § 1915(g); The

11 see Andrews v. King, 398 F.3d 1113, 1120-21 (9th Cir. 2005).

12 Court also reviewed Plaintiff's amended complaint and found that he 13 had not identified with sufficient specificity the actions of 14 Defendants Lt. R. Lopez and Sgt. Soekardi that constituted 15 excessive force. The Court dismissed with prejudice Plaintiff's

16 claims against Defendant Tagle, and dismissed with leave to amend 17 his claims against all remaining Defendants. If Plaintiff decided

18 to pay the full filing fee instead of responding the order to show 19 cause, he was directed to file a second amended complaint within 20 thirty days of paying the filing fee. 21 On July 27, 2009, after being granted an extension of time to

22 respond to the order to show cause, Plaintiff responded by filing a 23 "Order to Show Cause Reply" in which he challenges the dismissal of 24 this action pursuant to § 1915(g). He claims the "alleged

25 dismissals by the Court for failure to state a claim is [sic] 26 untrue," and attempts to make a showing as to why his action should 27 not be dismissed. 28 amended complaint. (Pl.'s Response at 1.) He also filed a second

2

1 2

DISCUSSION For purposes of a dismissal that may be counted under

3 § 1915(g), the phrase "fails to state a claim on which relief may 4 be granted" parallels the language of Federal Rule of Civil 5 Procedure 12(b)(6) and carries the same interpretation; the word 6 "frivolous" refers to a case that is "of little weight or 7 importance: having no basis in law or fact;" and the word 8 "malicious" refers to a case "filed with the 'intention or desire 9 to harm another.'" Andrews, 398 F.3d at 1121 (citation omitted).

10 Only cases within one of these three categories can be counted as United States District Court For the Northern District of California 11 strikes for § 1915(g) purposes. 12 See id.

Plaintiff alleges that the first case the Court considered a

13 strike for § 1915(g) purposes, Alkebu-Lan v. Hall, et al., No. CV14 03-0702-UA-CT (C.D. Cal. Feb. 5, 2003) (civil rights complaint 15 dismissed as frivolous), was "not dismissed, yet granted at the 16 institutional level on appeal, from the courts [sic] intervention." 17 (Pl.'s Response at 1.) Plaintiff is incorrect. On January 31,

18 2003, Case No. CV-03-0702-UA-CT was found to be "Legally and/or 19 patently frivolous" by a magistrate judge of the United States 20 District Court of the Central District of California. 21 2003 Order in Case No. CV-03-0702-UA-CT at 1.) (Jan. 31,

Thereafter, on

22 February 4, 2003, the district judge denied Plaintiff's application 23 to file the action without prepayment of the full filing fee. 24 (Feb. 4, 2003 Order in Case No. CV-03-0702-UA-CT at 1.) Thus, the

25 lodged complaint was returned to Plaintiff along with a copy of the 26 February 4, 2003 Order. The Ninth Circuit has held that a case is

27 "dismissed" for the purposes of § 1915(g) "when the court denies 28 the prisoner's application to file the action without prepayment of 3

1 the filing fee on the ground that the complaint is frivolous, 2 malicious or fails to state a claim, and thereupon terminates the 3 complaint." O'Neal v. Price, 531 F.3d 1146, 1152 (9th Cir. 2008).

4 The Central District Court disposed of the complaint in Case No. 5 CV-03-0702-UA-CT on such grounds; therefore, contrary to 6 Plaintiff's allegations, it was "dismissed" for the purposes of 7 § 1915(g). Id. at 8691, 8695 (finding that the district court

8 necessarily reviewed the complaints and made an assessment on their 9 merits in determining whether the actions qualified for IFP 10 status). United States District Court For the Northern District of California 11 Plaintiff argues that the second case, Alkebu-Lan v. Lewis, et

12 al., No. CV-F-03-05013-REC-LJO-P (E.D. Cal. May 29, 2003) (civil 13 rights action dismissed for failure to amend and for failure to 14 state a claim), should not have been considered a strike for 15 § 1915(g) purposes, stating: "The case was never given/received by 16 Plaintiff from the Court. However, the Court itself provided all (Pl.'s

17 the requested documentation to pursue the original issue." 18 Response at 1.) Plaintiff's argument is unavailing.

On February

19 27, 2003, a magistrate judge of the Eastern District found that the 20 complaint filed in Case No. CV-F-03-05013-REC-LJO-P "fail[ed] to 21 state a claim for relief;" therefore, it was dismissed with leave 22 to amend. 23 at 5.) (Feb. 27, 2003 Order in Case No. CV-F-03-05013-REC-LJO-P

Plaintiff was directed to file an amended complaint within (Id.) On April

24 thirty days or risk dismissal of the complaint.

25 10, 2003, the magistrate judge noted that more than thirty days had 26 passed, but Plaintiff failed to file an amended complaint or 27 respond to the Court's February 27, 2003 Order. 28 Order in Case No. CV-F-03-05013-REC-LJO-P at 1.) 4 (Apr. 10, 2003 Therefore, the

1 magistrate judge recommended the dismissal of that action "for 2 plaintiff's failure to obey the court's order of February 27, 2003, 3 and for the reasons set forth therein, namely, for failure to state 4 a claim upon which relief may be granted." (Id. at 3.) On May 29,

5 2003, a District Judge of the Eastern District adopted in full the 6 Findings and Recommendations of the magistrate judge and dismissed 7 that case for failure to state a claim. 8 Case No. CV-F-03-05013-REC-LJO-P at 2.) (May 29, 2003 Order in As mentioned above,

9 Plaintiff generally claims that "the alleged dismissals by the 10 Court for failure to state a claim is [sic] untrue;" however, the United States District Court For the Northern District of California 11 record shows otherwise. Thus, the dismissal of Case No. CV-F-03-

12 05013-REC-LJO-P is a second strike for § 1915(g) purposes. 13 Finally, Plaintiff claims that the case considered as the

14 third strike for § 1915(g) purposes, Alkebu-Lan v. Kane, et al., 15 No. C 05-5069 CW (PR) (N.D. Cal. June 12, 2006) (civil rights 16 action dismissed for failure to state a claim), "was reopened, 17 based upon a filing error, and given a new case no. C-06-5991 CW 18 (PR) due to the prison not providing Plaintiff with all court 19 documents in his mail (legal) . . . ." 20 Plaintiff's allegations are untrue. (Pl.'s Response at 2.)

This Court reviewed the

21 complaint in Case No. C 05-5069 CW (PR), which alleged that CTF 22 prison officials "falsely accused him of violating a prison chrono 23 prohibiting him from writing to his former wife, Ms. Tagli."1 24 12, 2006 Order in Case No. C 05-5069 CW (PR) at 1.) (June

On June 12,

25 2006, that action was dismissed for failure to state a claim upon 26 which relief could be granted. 27 28 Plaintiff spelled his former wife's name as "Tagli" in Case No. C 05-5069 CW (PR) as opposed to "Tagle" in the present action. 5
1

(Id. at 5.)

While Plaintiff's

1 prior action and the present one both name his former wife as a 2 Defendant, these actions are unrelated. Furthermore, his prior

3 action was never reopened based upon a "filing error" and was not 4 given the case number of the present action, Case No. 06-5991 CW
2 5 (PR).

Instead, the record shows that the present action commenced

6 when Plaintiff filed his original complaint on September 27, 2006. 7 Therefore, the dismissal of Case No. C 05-5069 CW (PR) is a third 8 strike for § 1915(g) purposes. 9 Finally, Plaintiff argues that the Court should allow him to

10 proceed IFP because he is presently "under imminent danger or United States District Court For the Northern District of California 11 physical (serious) injury . . . ."3 (Pl.'s Response at 2-3.)

12 However, Plaintiff may proceed IFP only if he is seeking relief 13 from a danger of serious physical injury which is "imminent" at the 14 time of filing. See Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d In its June 4, 2009 Order,

15 Cir. 2001) (en banc) (emphasis added).

16 the Court determined that the imminent danger exception to the 17 three-strikes bar was not applicable to this action: 18 19 20 Plaintiff appealed the dismissal of Case No. 05-5069 CW (PR); however, on November 16, 2006, his appeal was dismissed for failure 22 to prosecute -- about a month and a half after he filed the complaint in the present action. 23 3 Plaintiff alleges that he was relocated to the California 24 Men's Colony State Prison from the California Medical Facility (CMF) because he was in "imminent danger [of] serious physical injury" 25 after he "testified against several white supremacist CMF/CTF staff and CMF inmates . . . ." (Pl.'s Response at 2-3.) He also claims 26 he was "falsely placed in administrative segregation" and "stalked" by prison guards at the CMF, who threatened "to kill [him]." (Id. 27 at 3.) If Plaintiff seeks to bring an action in federal court about the conditions of confinement at the California Medical Facility, he 28 must file a civil rights complaint under 42 U.S.C. § 1983 in the Eastern District of California. 21 6
2

Here, although Plaintiff allegedly was in imminent danger of serious physical injury at the time he was attacked by Defendants, imminent danger is assessed at

1 2 3

the time a prisoner files a civil rights action, rather than at the time of the incidents giving rise to the prisoner's claims. At the time Plaintiff filed this action, he was housed at the California Medical Facility and was not in any danger of attack by Defendants.

4 (June 4, 2009 Order at 8 (citation omitted).) 5 Plaintiff's allegations in his response to the order to show

6 cause fail to show that this action should not be dismissed 7 pursuant to § 1915(g). Accordingly, the present action is hereby

8 DISMISSED without prejudice to bringing the claims herein in a 9 future action in which Plaintiff pays the full filing fee of 10 $350.00. United States District Court For the Northern District of California 11 The Clerk of the Court shall close the file and terminate all 12 pending motions. 13 IT IS SO ORDERED. 8/25/09 CLAUDIA WILKEN United States District Judge 14 DATED: 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7

P:\PRO-SE\CW\CR.06\Alkebu-Lan5991.3strikesDISMISS.frm

1 2 3 4 5 6 SHAI ALKEBU-LAN, 7 8 v. Plaintiff,

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case Number: CV06-05991 CW CERTIFICATE OF SERVICE

9 A.P.KANE et al, 10 United States District Court For the Northern District of California 11 Defendant. /

12 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. 13 That on August 25, 2009, I SERVED a true and correct copy(ies) of the attached, by placing said 14 copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located 15 in the Clerk's office. 16 17 18 Shai Alkebu-lan CDCR# P-02598 California Men's Colony State Prison 19 Cell #D-8384 P.O. Box 8101 20 San Luis Obispo, CA 93409-8101 21 Dated: August 25, 2009 22 23 24 25 26 27 28 8 Richard W. Wieking, Clerk By: Sheilah Cahill, Deputy Clerk

P:\PRO-SE\CW\CR.06\Alkebu-Lan5991.3strikesDISMISS.frm