Shai Alkebu-Lan v. Zachary Brown
- Jon Tigar
- 4:21-cv-06249
- U.S. District Court · Northern District of California
- 4
In Shai Bernardo Alkebu-Lan v. Lisa Hazelwood, Judge Tigar ordered Alkebu-Lan to explain why his prisoner fee waiver should not be denied under the three-strikes rule.
Shai Bernardo Alkebu-Lan, whose request to proceed without paying the filing fee was not yet denied but was subject to a show-cause order requiring a response within 28 days or payment of the full filing fee.
What happened
In Shai Bernardo Alkebu-Lan v. Lisa Hazelwood, the court considered whether Alkebu-Lan, a prisoner representing himself, could proceed without paying the filing fee in his civil-rights lawsuit. He alleged that the defendants were responsible for denying his 2021 request for parole-related relief connected to COVID-19.
The court found that three of Alkebu-Lan’s earlier cases qualified as strikes because they had been dismissed as frivolous or for failing to state a claim. The court also found that the complaint did not allege, and the record did not show, that he faced an immediate risk of serious physical injury when he filed this case.
Judge Tigar ordered Alkebu-Lan to explain in writing within 28 days why his request to proceed without paying the filing fee should not be denied. He could instead pay the full $402 filing fee. The court stated that failure to respond as ordered would result in dismissal of the case without further notice.
The detailed version
- Shai Alkebu-Lan v. Zachary Brown · No. 4:21-cv-06249
- Jon Tigar
- Nov. 22, 2021
Background
Shai Bernardo Alkebu-Lan, a California prisoner representing himself, filed a civil-rights action under 42 U.S.C. § 1983 and asked to proceed without paying the filing fee. The complaint named Board of Parole Hearings psychologists Lisa Hazelwood and Emily Wiznewski, commissioners Troy Taira and Nga Lam, correctional officer Zachary Brown, and Deputy Attorney General Anthony Tartaglio as defendants.
Alkebu-Lan alleged that the defendants were responsible for the Board of Parole Hearings’ 2021 denial of his request for relief related to COVID-19. He requested monetary damages, review of the Board’s decision, and termination of the defendants for allegedly concealing grievances and manipulating the courts.
Three-strikes rule
The Prison Litigation Reform Act generally prevents a prisoner from proceeding without paying the filing fee if the prisoner previously brought three or more federal cases that were dismissed as frivolous, malicious, or for failure to state a claim. An exception applies if the prisoner was under imminent danger of serious physical injury when the new case was filed.
The court reviewed three earlier related cases and determined that each qualified as a strike. One had been dismissed as frivolous. Another had been dismissed for failure to state a claim after Alkebu-Lan failed to amend the complaint. The third had been dismissed for failure to state a claim without leave to amend.
Order
The court concluded that the complaint did not allege that Alkebu-Lan faced imminent danger of serious physical injury. It therefore ordered him to show cause—that is, to explain in writing—within 28 days why his request to proceed without paying the filing fee should not be denied under the three-strikes rule.
The order also allowed him to pay the full $402 filing fee instead. The court stated that failure to respond in accordance with the order would result in dismissal of the action without further notice under Federal Rule of Civil Procedure 41(b), for failure to comply with a court order.
This was an order requiring a response, not a final denial of the request to proceed without paying the filing fee.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.