Uhuru v. Oliveros et al

Filing 5

ORDER Denying 2 Motion to Proceed In Forma Pauperis as Barred by 28 USC 1915(g) and Dismissing Civil Action Without Prejudice for Failure to Pay Filing Fee Required by 28 U.S.C. 1914(a) and for Failure to State a Claim Pursuant to 28 U.S.C. 1915A(b)(1). Signed by Judge Cathy Ann Bencivengo on 4/25/2017. (All non-registered users served via U.S. Mail Service)(jjg)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11
12

KOHEN DIALLO UHURU,
aka DIALLO E. UHURU,
CDCR #P-73824,

13

Case No.: 3:16-cv-02973-CAB-RBB
ORDER:
Plaintiff,

14

1) DENYING MOTION TO
PROCEED IN FORMA PAUPERIS
AS BARRED BY 28 U.S.C. § 1915(g)
[ECF No. 2]

vs.

15
16
17

Lt. M. OLIVEROS, Correctional Guard
with Rank, et al.,

AND

Defendants.

18

(2) DISMISSING CIVIL ACTION
WITHOUT PREJUDICE FOR
FAILURE TO PAY FILING FEE
REQUIRED BY 28 U.S.C. § 1914(a)
AND FOR FAILURE TO STATE A
CLAIM PURSUANT TO
28 U.S.C. § 1915A(b)(1)

19
20
21
22
23
24
25

KOHEN DIALLO UHURU (“Plaintiff”), also known as Diallo E. Uhuru, currently

26

incarcerated at Richard J. Donovan Correctional Facility (“RJD”) in San Diego,

27

California, and proceeding pro se, has filed a civil rights complaint pursuant to 42 U.S.C.

28

§ 1993 (ECF No. 1).
1
3:16-cv-02973-CAB-RBB

1

Plaintiff claims a host of RJD officials and one doctor at the California Medical

2

Facility have violated his First, Eighth, and Fourteenth Amendment rights as a group on

3

unspecified occasions “though a caste system that is designated by laches to demoralize

4

and dehumanize [him] from being a heterosexual” and identify as a “Hue-Man” Nubian

5

Hebrew Israelite. (ECF No. 1 at 2-4, 10-11, 16.) Plaintiff contends to have been

6

improperly “punished” with “detrimental psychotropic medications,” and to have been

7

denied single-cell and lower bunk status for his narcolepsy, seizures, and his aversion to

8

“undercover sodomites, exhibitionist[s], and gang affiliate[s] who listen[] to rap music

9

and watch violent television programs.” Plaintiff also claims he was refused the right to

10

practice his religion under the Religious Land Use and Institutionalized Persons Act

11

(“RLIPA”) because RJD is “misappropriat[ing] funds” by “pouring cement” but not

12

work[ing] on the chapel,” that “CDCR officials” are “notorious[ly] … not processing

13

inmate/parolee appeals,” have placed him in Ad-Seg “because he is addicted to prayer,”

14

and have “tortured [him] and colluded” together to mistreat and misdiagnose his mental

15

illnesses in a racially discriminatory manner. (Id. at 11-16, 18-23.)

16

Plaintiff seeks declaratory and injunctive relief, including “documentation that the

17

word permanent means enduring and without change,” and a court order “allowing [him]

18

to maintain a hand held audio recording device for dialogue/consultations,” as well as

19

$750,000 in general and punitive damages. (Id. at 9.)

20

Plaintiff has not prepaid the civil filing fee required by 28 U.S.C. § 1914(a);

21

instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28

22

U.S.C. § 1915(a) (ECF No. 2).

23

I.

24

Motion to Proceed IFP
“All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa County

25

Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Plaintiff, however,

26

“face an additional hurdle.” Id. In addition to requiring prisoners to “pay the full amount

27

of a filing fee,” in “monthly installments” or “increments” as provided by 28 U.S.C.

28

§ 1915(a)(3)(b), Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v.
2
3:16-cv-02973-CAB-RBB

1

Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), the Prison Litigation Reform Act

2

(“PLRA”) amended section 1915 to altogether preclude the privilege to proceed IFP:

3

. . . if [a] 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 can be granted, unless the prisoner is under
imminent danger of serious physical injury.

4
5
6
7
8

28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’

9

provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005) (hereafter

10
11

“Andrews”).
“Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed IFP.”

12

Id.; see also Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter

13

“Cervantes”) (under the PLRA, “[p]risoners who have repeatedly brought unsuccessful

14

suits may entirely be barred from IFP status under the three strikes rule[.]”). The

15

objective of the PLRA is to further “the congressional goal of reducing frivolous prisoner

16

litigation in federal court.” Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997).

17

“[S]ection 1915(g)’s cap on prior dismissed claims applies to claims dismissed both

18

before and after the statute’s effective date.” Id. at 1311.

19

“Strikes are prior cases or appeals, brought while the plaintiff was a prisoner,

20

which were dismissed on the ground that they were frivolous, malicious, or failed to state

21

a claim,” Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the

22

district court styles such dismissal as a denial of the prisoner’s application to file the

23

action without prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153

24

(9th Cir. 2008); see also El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. Aug. 12,

25

2016) (noting that when court “review[s] a dismissal to determine whether it counts as a

26

strike, the style of the dismissal or the procedural posture is immaterial. Instead, the

27

central question is whether the dismissal ‘rang the PLRA bells of frivolous, malicious, or

28

failure to state a claim.’”) (quoting Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013)).
3
3:16-cv-02973-CAB-RBB

1

Once a prisoner has accumulated three strikes, he is simply prohibited by section

2

1915(g) from pursuing any other IFP civil action or appeal in federal court unless he

3

alleges he is facing “imminent danger of serious physical injury.” See 28 U.S.C.

4

§ 1915(g); Cervantes, 493 F.3d at 1051-52 (noting § 1915(g)’s exception for IFP

5

complaints which “make[] a plausible allegation that the prisoner faced ‘imminent danger

6

of serious physical injury’ at the time of filing.”).

7

II.

8
9

Application to Plaintiff
As an initial matter, the Court has carefully reviewed Plaintiff’s Complaint and has

ascertained that it does not contain any “plausible allegations” to suggest he “faced

10

‘imminent danger of serious physical injury’ at the time of filing.” Cervantes, 493 F.3d at

11

1055 (quoting 28 U.S.C. § 1915(g)). Instead, as noted above, Plaintiff’s Complaint seeks

12

to sue “CDCR officials” as a group for improperly subjecting him to racial and mental

13

health classifications with which he disagrees, making housing determinations based in

14

part on those classifications, and impugning his religion by allocating resources in ways

15

he finds deficient. See ECF No. 1 at 10-23.

16

And while Defendants typically carry the burden to show that a prisoner is not

17

entitled to proceed IFP, Andrews, 398 F.3d at 1119, “in some instances, the district court

18

docket may be sufficient to show that a prior dismissal satisfies at least one on the criteria

19

under § 1915(g) and therefore counts as a strike.” Id. at 1120. That is the case here.

20

A court may take judicial notice of its own records, see Molus v. Swan, Civil Case

21

No. 3:05-cv-00452–MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing

22

United States v. Author Services, 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v.

23

Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015), and “‘may take

24

notice of proceedings in other courts, both within and without the federal judicial system,

25

if those proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508

26

F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803

27

n.2 (9th Cir. 2002)); see also United States ex rel. Robinson Rancheria Citizens Council

28

v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992).
4
3:16-cv-02973-CAB-RBB

1

Thus, this Court takes judicial notice that Plaintiff, Kohen Diallo Uhuru, also

2

known as Diallo E. Uhuru, and identified as CDCR Inmate #P-73824, has had three, and

3

potentially four,1 prior prisoner civil actions dismissed on the grounds that they were

4

frivolous, malicious, or failed to state a claim upon which relief may be granted.

5

They are:

6

1)

Diallo v. Yarborough, et al., Civil Case No. 2:03-cv-05401-JVS-VBK

7

(C.D. Cal. February 5, 2004) (Report and Recommendation [“R&R”] to Grant

8

Defendants’ Motion to Dismiss Complaint for failure to state a claim pursuant

9

(ECF No. 28 at 11) (“The allegation of the Complaint are insufficient to state a

10

claim against each individual defendant upon which relief can be granted.”); (C.D.

11

Cal. April 16, 2004) (Order Accepting R&R Granting Defendants’ Motion to

12

Dismiss, and Directing that Judgment be entered dismissing action without

13

prejudice) (ECF No. 34 at 1-2) (strike one);

14

///

15
16
17
18
19
20
21
22
23
24
25
26
27
28

1

In Uhuru v. Spagnola, et al., C.D. Cal. Civil Case No. 2:09-cv-05582-JVS-VBK, Central
District of California U.S. District Judge James V. Selna accepted and adopted the Report
and Recommendation of U.S. Magistrate Judge Victor B. Kenton to dismiss Plaintiff’s
§ 1983 Complaint “and the action, without prejudice” based on Plaintiff’s initial “fail[ure]
to state a claim pursuant to Section 1983 against each individual Defendant in his
Complaint,” and his subsequent failure to prosecute by failing to amend. See ECF Nos. 5,
9, 10. While this Court has previously held such a dismissal may qualify as a “strike,” see
Ruff v. Ramirez, 3:07-cv-0962-JLS-CAB, 2007 WL 4208286 at *5 (S.D. Cal. Nov. 28,
2007) (ECF No. 27), the Ninth Circuit has yet to decide whether a dismissal under these
circumstances may be counted pursuant to § 1915(g). See Harris v. Mangum, et al., Ninth
Circuit Appeal No. 15-15054 (filed Jan. 12, 2015), Appellant’s Opening Brief (ECF No.
40 at 24-30) (arguing on appeal that prisoner’s dismissals for failure to amend do not
qualify as strikes); cf. Appellee’s Answering Brief (ECF No. 49 at 10-17) (arguing that “if
a prisoner’s deficient complaint is the proximate cause of the dismissal [for failure to
prosecute], he accrues a strike.”). In the absence of any resolved Ninth Circuit precedent,
and because Plaintiff has three other clear prior dismissals for failure to state a claim, this
Court will not consider Uhuru v. Spagnola, et al., C.D. Cal. Civil Case No. 2:09-cv-05582JVS-VBK as an additional fourth strike against Plaintiff under § 1915(g) at this time.
5
3:16-cv-02973-CAB-RBB

1

2)

Diallo v. Moskowitz, et al., Civil Case No. 2:07-cv-07109-JVS-VBK

2

(C.D. Cal. June 1, 2009) (Amended R&R Granting Defendants’ Motion to

3

Dismiss Complaint (ECF No. 48); (C.D. Cal. July 6, 2009) (Order Accepting and

4

Adopting Amended R&R and dismissing the Complaint, “and the action, with

5

prejudice.”) (ECF No. 50 at 1-2) (strike two); and

6

3)

Diallo v. Greenman, et al., Civil Case No. 2:07-cv-02937-JVS-VBK

7

(C.D. Cal. Sept. 21, 2009) (R&R Granting Defendants’ Motion to Dismiss First

8

Amended Complaint) (ECF No. 44 at 8, 25 (“[T]he allegations of the First

9

Amended Complaint are insufficient to state a federal civil rights claim against

10

Defendants.”)); (C.D. Cal. Oct. 27, 2009) (Order Accepting & Adopting R&R and

11

Dismissing First Amended Complaint, “and the action, with prejudice.”) (ECF No.

12

47).
Accordingly, because Plaintiff has, while incarcerated, accumulated three “strikes”

13
14

pursuant to § 1915(g), and he fails to make a “plausible allegation” that he faced

15

imminent danger of serious physical injury at the time he filed his Complaint, he is not

16

entitled to the privilege of proceeding IFP in this action. See Cervantes, 493 F.3d at 1055;

17

Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir. 1999) (finding that 28 U.S.C.

18

§ 1915(g) “does not prevent all prisoners from accessing the courts; it only precludes

19

prisoners with a history of abusing the legal system from continuing to abuse it while

20

enjoying IFP status”); see also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984)

21

(“[C]ourt permission to proceed IFP is itself a matter of privilege and not right.”).

22

III.

23

Screening of Complaint pursuant to § 1915A
While Plaintiff has been denied leave to commence this civil action without

24

prepayment of the $400 civil filing fee required by 28 U.S.C. § 1914(a), and his case

25

requires dismissal for that reason alone, the Court also elects to conduct a sua sponte

26

review of Plaintiff’s pleading because he was “incarcerated or detained in any facility

27

[and] is accused of, sentenced for, or adjudicated delinquent for, violations of criminal

28

law or the terms or conditions of parole, probation, pretrial release, or diversionary
6
3:16-cv-02973-CAB-RBB

1

program” at the time he filed this action. See 28 U.S.C. § 1915A(a), (c).

2

Section 1915A, also enacted as part of PLRA, requires sua sponte dismissal of

3

prisoner complaints, or any portions thereof, which are frivolous, malicious, or fail to

4

state a claim upon which relief may be granted. 28 U.S.C. § 1915A(b); Coleman v.

5

Tollefson, 135 S. Ct. 1759, 1764 (2015); Resnick v. Hayes, 213 F.3d 443, 446-47 (9th Cir.

6

2000). “The purpose of § 1915A is to ‘ensure that the targets of frivolous or malicious

7

suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920

8

n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681

9

(7th Cir. 2012)).

10

Plaintiff’s Complaint fails to state a claim upon which § 1983 relief may be

11

granted against any of the named Defendants. See id.; 28 U.S.C. § 1915A(b)(1). In order

12

to state a claim against an official in his personal capacity, Plaintiff must allege facts

13

which demonstrate that each named defendant personally participated in the deprivation

14

of his rights. Ashcroft v. Iqbal, 556 U.S. 662, 676-77 (2009); Simmons v. Navaho Cnty,

15

609 F.3d 1011, 1020-21 (9th Cir. 2010); Jones v. Williams, 297 F.3d 930, 934 (9th Cir.

16

2002). Plaintiff may not attribute liability to a group of defendants, but instead, must “set

17

forth specific facts as to each individual defendant’s” deprivation of his rights. Leer v.

18

Murphy, 844 F.2d 628, 634 (9th Cir. 1988); see also Taylor v. List, 880 F.2d 1040, 1045

19

(9th Cir. 1989). Liability may not be imposed on supervisory personnel under the theory

20

of respondeat superior, as each defendant is only liable for his or her own misconduct.

21

Iqbal, 556 U.S. at 676-77. Supervisors may only be held liable if they “participated in or

22

directed the violations, or knew of the violations and failed to act to prevent them.”

23

Lemire v. Cal. Dept. of Corrections & Rehabilitation, 726 F.3d 1062, 1074-75 (9th Cir.

24

2013) (“A prison official in a supervisory position may be held liable under § 1983 ... ‘if

25

he or she was personally involved in the constitutional deprivation or a sufficient causal

26

connection exists between the supervisor’s unlawful conduct and the constitutional

27

violation.’”) (quoting Lolli v. Cty. of Orange, 351 F.3d 410, 418 (9th Cir. 2003)); Starr v.

28

Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011).
7
3:16-cv-02973-CAB-RBB

1

Throughout his pleading, Plaintiff claims he was “forced to suffer” various

2

unconstitutional conditions on unspecified occasions, that all Defendants are “joined and

3

related by a series of … occurrences,” and that “multiple CDCR officials” are to blame

4

(ECF No. 1 at 4, 12, 18, 19, 23). These types of “unadorned, the-defendant[s]-unlawfully-

5

harmed-me accusation[s],” “stop[] short of the line between possibility and plausibility,”

6

and fail[] to “show” Plaintiff is “entitled to relief.” Iqbal, 556 U.S. at 678-79.

7

IV.

8
9
10
11

Conclusion and Order
For the reasons set forth above, the Court:
1)

DENIES Plaintiff’s Motion to Proceed IFP (ECF No. 2) as barred by 28

U.S.C. § 1915(g);
2)

DISMISSES this action without prejudice for failure to pay the full statutory

12

and administrative $400 civil filing fee required by 28 U.S.C. § 1914(a), and for failing to

13

state a claim upon which § 1983 relief can be granted pursuant to 28 U.S.C.

14

§ 1915A(b)(1);

15

3)

CERTIFIES that an IFP appeal from this Order would be frivolous and

16

therefore, would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). See

17

Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548,

18

550 (9th Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if

19

appeal would not be frivolous); and

20

4)

21

IT IS SO ORDERED.

22

DIRECTS the Clerk of Court to close the file.

Dated: April 25, 2017

23
24
25
26
27
28
8
3:16-cv-02973-CAB-RBB