Alkebu-Lan v. Hazelwood

Background

Shai Bernardo Alkebu-Lan, who was incarcerated at California Men’s Colony, filed this action under 42 U.S.C. § 1983 without a lawyer. He requested permission to proceed without paying the filing fee upfront. The complaint named Board of Parole Hearings psychologists Lisa Hazelwood and Emily Wiznewski, commissioners Troy Taira and Nga Lam, Correctional Training Facility Soledad correctional officer Zachary Brown, and California Deputy Attorney General Anthony Tartaglio.

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 sought money damages, review of the parole decision, and termination of the defendants for allegedly conspiring to conceal grievances and manipulate the courts.

Three-strikes rule

The Prison Litigation Reform Act generally prevents an incarcerated person from proceeding without paying the filing fee if the person has brought three or more earlier federal cases, while incarcerated or detained, that were dismissed as frivolous, malicious, or for failure to state a claim. The exception applies if the person was under imminent danger of serious physical injury when the new case was filed.

The court independently reviewed three earlier cases and concluded that all three qualified as strikes. In the first, the earlier court found the allegations legally or factually frivolous. In the second, the court dismissed after finding that the complaint failed to state a due-process or conspiracy claim and Alkebu-Lan did not file an amended complaint. In the third, the court dismissed for failure to state a claim, while allowing a later damages complaint if specified requirements were satisfied. The court also noted that an earlier round of this case, No. 06-5991 CW, had previously denied Alkebu-Lan permission to proceed without paying the fee based on these three strikes.

Imminent-danger allegations

The court considered whether Alkebu-Lan plausibly alleged imminent danger of serious physical injury as of July 22, 2021, the date the complaint was delivered for mailing. Alkebu-Lan argued that he had faced danger since 2017, including alleged threats, forced administration of psychotropic medication, a conspiracy involving prison officials, retaliation, and threats connected to disciplinary violations.

The court found that he had not reported a physical injury since 2017 and was no longer housed at the facility where some of the alleged events occurred. The court also found that the allegations about threats at his current facility did not plausibly establish imminent danger at the time of filing because the timing of the threats was unclear. It further concluded that the general risk of injury associated with incarceration did not establish imminent danger to Alkebu-Lan personally.

Order

The court did not yet deny the request to proceed without paying the filing fee. Instead, it ordered Alkebu-Lan to show cause in writing within 28 days why the request should not be denied under the three-strikes rule. He could alternatively pay the full $402 filing fee by the deadline. The order states that failure to respond as required 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.