Muhammad v. Brackensiek et al

Filing 7

AMENDED OPINION AND ORDER by Judge Frank H. Seay (Re: 6 Ruling on Motion to Proceed in Forma Pauperis ) (acg, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
ABNDULLAH L. R. MUHAMMAD,
Plaintiff,
v.
WAYNE BRACKENSIEK, et al.,
Defendants,

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No. CIV 12-144-FHS-SPS

AMENDED OPINION AND ORDER
DENYING LEAVE TO PROCEED IN FORMA PAUPERIS
Plaintiff AbNdullah Muhammad, a prisoner appearing pro se and seeking to bring a
civil rights action, has filed a motion for leave to proceed in forma pauperis and supporting
affidavit in conformance with 28 U.S.C. § 1915(a). A review of his litigation history,
however, indicates he has accumulated at least three prior civil rights actions that count as
“strikes,” pursuant to 28 U.S.C. § 1915(g):
In no event shall a prisoner bring a civil action or appeal a judgment in a civil
action or proceeding under this section 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.
28 U.S.C. § 1915(g).
In Muhammad v. Morton, No. CIV-05-713-T (W.D. Okla. Mar. 15, 2006), the district
court adopted the Magistrate Judge’s Report and Recommendation that the action be
dismissed for failure to state a claim, and the dismissal was counted as a strike. Plaintiff’s
appeal was dismissed in Case No. 06-6122 (10th Cir. July 31, 2006).

Muhammad v. Cody, No. CIV-92-1963-W (W.D. Okla. May 21, 1993), dismissed
plaintiff’s claims of denial of access to the courts, retaliation, and conspiracy as frivolous,
pursuant to 28 U.S.C. § 1915(d). In addition, his claims related to restrictive housing were
dismissed under Fed. R. Civ. P. 56. Id.1
In Muhammad v. Bellmon, No. CIV-90-1608-R (W.D. Okla. Jan. 17, 1991), plaintiff’s
civil rights action was dismissed because his allegations of unconstitutional conduct were not
supported by the record, and he had not presented a rational argument supported by the law
or the facts. The court further held that any appeal of the judgment would be frivolous and
not taken in good faith. Id. at 12.
Finally, Muhammad v. Henry, No. CIV-86-2337-R (W.D. Okla. July 27, 1988), was
dismissed because there was no genuine issue of material fact, and the defendants were
entitled to judgment as a matter of law.
Plaintiff alleges in his present complaint that he was denied access to the courts, the
defendants conspired against him, he was denied the right of free speech, and he was
subjected to cruel and unusual punishment when he was fed beans almost every day. The
court finds his allegations fail to set forth a credible claim that he is in imminent danger of
serious physical injury and that he qualifies for the exception in 28 U.S.C. § 1915(g).
ACCORDINGLY, plaintiff’s motion for leave to proceed in forma pauperis [Docket
#2] is DENIED. Plaintiff is directed to forward the $350.00 filing fee to the Court Clerk
within twenty (20) days. The agency having custody of plaintiff is ordered to release funds
from plaintiff’s accounts, including his trust account, for payment of the filing fee. Failure
1

Prisoner suits dismissed prior to the 1996 enactment of the Prison Litigation Reform Act
count as strikes. Day v. Maynard, 200 F.3d 665, 667 (10th Cir. 1999) (citing Green v. Nottingham,
90 F.3d 415, 418-20 (10th Cir. 1996)).

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to comply with this order will result in dismissal of this action.
IT IS SO ORDERED this 8th day of May 2012.

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