(PC) Uhuru v. Walters

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA | Kohen Diallo Uhuru, No. 2:23-cv-00200-KJM-DMC (PC) 12 Plaintiff, ORDER 13 v. Walters et al., 1S Defendants.

17 Plaintiff, a state prisoner proceeding pro se, filed this civil rights action seeking relief | under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided | by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

20 On June 25, 2024, the magistrate judge filed findings and recommendations, which were | served on plaintiff, and which contained notice to all parties that any objections to the findings | and recommendations were to be filed within 14 days after being served with the findings and | recommendations. See F&Rs, ECF No. 15. Plaintiff filed an objection to the F&Rs. See | Objections, ECF No. 16.

25 The court presumes that any findings of fact are correct. See Orand v. United States, | 602 F.2d 207-08 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed de | novo. See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007). (“[D]eterminations of law by | ///// the magistrate judge are reviewed de novo by both the district court and [the appellate] court . . . .”).

3 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this court has conducted a de novo review of this case. Having reviewed the file, the court declines to adopt the findings and recommendations.

6 Plaintiff asks to proceed in forma pauperis, which magistrate judge recommends denying because plaintiff is a “three striker” under 28 U.S.C. § 1915(g). See F&Rs at 1–2. The magistrate judge cites plaintiff's prior cases that were dismissed for failure to state a viable claim and when amendment would have been futile, and then concludes plaintiff has not properly alleged imminent physical danger. See id. at 2. Plaintiff objects and claims he has alleged imminent danger. See Objections at 3–4. The issue here is whether plaintiff has properly alleged imminent physical danger, and the court concludes he has.

13 Section 1915 does not permit a “three-striker” to proceed in forma pauperis unless he alleges an imminent danger of serious physical injury. Andrew v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). The Ninth Circuit has explained that “imminent” danger means an allegation of “an ongoing danger.” Id. at 1056 (citation omitted). As a result, an allegation that “prison officials continue with a practice that has injured [plaintiff] or others similarly situated in the past will satisfy the ‘ongoing danger’ standard.” Id. at 1057 (citation omitted). That allegation must be “both fairly traceable to unlawful conduct alleged in [the] complaint and redressable by the court.” Ray v. Lara, 31 F.4th 692, 701 (9th Cir. 2022). As the Ninth Circuit has recognized, the court “must liberally construe [a pro se plaintiff's] allegations.” See Andrews v. Cervantes, 493 F. 3d 1047, 1055 (9th Cir. 2007) (citations omitted).

23 Plaintiff alleges dangers to his physical health owing to the poor ventilation at the prison where he is housed, due to defendants’ ADA violations. See FAC at 10, ECF No. 13. Plaintiff also claims other injuries from ADA violations including retaliatory deprivation of access to a medical walker or wheelchair. See id. The F&Rs do not address these allegations, stating only that plaintiff is bringing claims relating to religious practice rights. F&Rs at 2. The court finds the allegations in the complaint satisfy the imminent danger exception as plaintiff complains of | several physical maladies that prison staff were either indifferent to or were allegedly trying to | exacerbate. See Jackson v. Bick, 2017 WL 363017, at *2 (E.D. Cal. Jan 24, 2017). The court | recognizes that plaintiff has not provided much detail to support these allegations, but the court | construes the pro se plaintiffs allegations liberally and finds the exception is met. See Andrews, | 493 F. 3d at 1055. Because the magistrate judge has not yet screened the complaint as required | by the in forma pauperis statute, see 28 U.S.C. § 1915(e)(2), the court refers this matter back to | the assigned magistrate judge.

8 Accordingly, IT IS HEREBY ORDERED as follows: 9 1. The findings and recommendations (ECF No. 15) are not adopted; and 10 2. This matter is referred back to the magistrate judge for further pretrial proceedings | consistent with this order.

12 IT IS SO ORDERED | DATED March 5, 2025.

16 NITED STATES DISTRICT JUDGE