Pedro Rodriguez v. Kathleen Allison ( 2021 )


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  •                            NOT FOR PUBLICATION                            FILED
    UNITED STATES COURT OF APPEALS                         MAY 4 2021
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    PEDRO RODRIGUEZ,                                No.    19-55125
    Plaintiff-Appellant,            D.C. No.
    5:18-cv-02651-AG-AGR
    v.
    KATHLEEN ALLISON, Secretary for the             MEMORANDUM*
    California Department of Corrections and
    Rehabilitation, CDCR Director; et al.,
    Defendants-Appellees.
    Appeal from the United States District Court
    for the Central District of California
    Andrew J. Guilford, District Judge, Presiding
    Argued and submitted April 14, 2021*
    Pasadena, California
    Before: PAEZ and VANDYKE, Circuit Judges, and KORMAN,** District Judge.
    Pedro Rodriguez, a state prisoner, appeals the district court’s dismissal of his
    lawsuit against various California prison officials. He alleged claims for relief
    pursuant to the Religious Land Use and Institutionalized Persons Act (“RLUIPA”),
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The Honorable Edward R. Korman, United States District Judge for
    the Eastern District of New York, sitting by designation.
    the Equal Protection Clause of the Fourteenth Amendment, and the Free Exercise
    Clause of the First Amendment. The district court, upon screening Rodriguez’s
    complaint, dismissed for failure to state a claim and because his claims were
    frivolous. See 28 U.S.C. § 1915A(b). We have jurisdiction under 
    28 U.S.C. § 1291
    , and reviewing de novo, we affirm.
    Although we question the district court’s reasons for dismissing the
    complaint for failure to state a claim, see Johnson v. City of Shelby, 
    574 U.S. 10
    ,
    11 (2014) (per curiam) (holding that “a short and plain statement of the claim”
    satisfies Federal Rule of Civil Procedure 8(a)(2)); Holt v. Hobbs, 
    574 U.S. 352
    ,
    364–65 (2015) (holding that under RLUIPA, the prison must show that it “lack[ed]
    other means of achieving its desired goal without imposing a substantial burden on
    the exercise of religion by the objecting party”) (citation and alteration marks
    omitted); Warsoldier v. Woodford, 
    418 F.3d 989
    , 999 (9th Cir. 2005) (holding that
    under RLUIPA, officials must demonstrate that they “actually considered and
    rejected the efficacy of less restrictive measures”); Turner v. Safley, 
    482 U.S. 78
    ,
    89–90 (1987) (establishing a fact-dependent analysis to determine the merits of
    prisoners’ constitutional claims), we must affirm.
    Under the Prison Litigation Reform Act (“PLRA”), prisoners are ineligible
    to proceed in forma pauperis if they have brought three or more civil actions or
    appeals while incarcerated or detained that were dismissed on the grounds that they
    2
    were “frivolous, malicious, or fail[ed] to state a claim upon which relief may be
    granted.” 
    28 U.S.C. § 1915
    (g). There is an exception to the three-strikes rule “if
    the complaint makes a plausible allegation that the prisoner faced ‘imminent
    danger of serious physical injury’ at the time of filing.” Andrews v. Cervantes, 
    493 F.3d 1047
    , 1055 (9th Cir. 2007) (quoting 
    28 U.S.C. § 1915
    (g)).
    Rodriguez filed this case in forma pauperis. In a prior action involving
    Rodriguez, we concluded that he has had at least three prior actions or appeals
    dismissed as frivolous, malicious, or for failure to state a claim upon which relief
    may be granted, and we thus found him ineligible to proceed in forma pauperis.
    Order at 1, Rodriguez v. Harris, No. 19-55307 (9th Cir. Jan. 24, 2020), ECF. No.
    15.1
    Because Rodriguez has incurred three strikes under the PLRA and has not
    alleged that he is in imminent danger of serious physical injury, he is ineligible to
    proceed in forma pauperis. We affirm with instructions to the district court to
    clarify that dismissal is without prejudice, such that Rodriguez may proceed with
    the case if he pays the filing fee.
    AFFIRMED AND REMANDED.
    1
    See, e.g., Rodriguez v. Greco, No. 15-56907 (9th Cir. Apr. 5, 2016) (order finding
    appeal frivolous); Rodriguez v. Greco, No. 15-56934 (9th Cir. Mar. 7, 2016) (order
    finding appeal frivolous); Rodriguez v. Robinson, No. 3:14-cv-02770-LAB-WVG
    (S.D. Cal. Jan. 16, 2015) (district court dismissed complaint with leave to amend
    for failure to state a claim and no amended complaint filed).
    3
    

Document Info

Docket Number: 19-55125

Filed Date: 5/4/2021

Precedential Status: Non-Precedential

Modified Date: 5/4/2021