Opinion
2:23-cv-0383 DAD DB P
04-19-2023
KRZYSZTOF F. WOLINSKI, Petitioner, v. GINA JONES, et al., Respondents.
ORDER AND FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES, UNITED STATES MAGISTRATE JUDGE
Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and a motion to proceed in forma pauperis. Petitioner claims he is being denied Halal meals in violation of his First Amendment rights. On screening, this court found petitioner's claim may not be raised in a §2254 petition and recommended the petition be dismissed without prejudice to its renewal as a civil rights action under 42 U.S.C. §1983. In addition, this court dismissed petitioner's motion to proceed in forma pauperis as moot. (Mar. 21, 2023 Order and Findings and Recos. (ECF No. 6).)
Petitioner filed objections to the findings and recommendations. Petitioner states that he wishes to convert this action to a civil rights action. Petitioner appears to recognize the differences between a habeas proceeding and a civil rights proceeding. Therefore, this court will vacate the recommendation that this case be dismissed and reinstate petitioner's motion to proceed in forma pauperis.
In the findings and recommendations, this court noted that petitioner has been designated a “three strikes” litigant under 28 U.S.C. §1915(g). A prisoner incurs three strikes when they have filed three or more suits which were dismissed as frivolous, as malicious, or for the prisoner's failure to state a claim upon which relief may be granted. 28 U.S.C. §1915(g). Recently, a judge in this district found petitioner had incurred three strikes, denied his motion to proceed in forma pauperis, and dismissed the case for petitioner's failure to pay the filing fee. Wolinski v. Allison, No. 2:22-cv-0451 KJM EFB P (Orders filed July 15, 2022 and January 17, 2023).
As a three-strikes litigant, petitioner may only proceed in a §1983 action if he demonstrates that at the time he filed suit, he was “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). Petitioner's claim - that he was denied Halal meals in violation of his First Amendment rights - does not show any such imminent danger. Therefore, this court will recommend that petitioner's motion to proceed in forma pauperis be denied and he be required to pay the $402 filing fee if he wishes to proceed with this action.
If, and when, petitioner is permitted to proceed with this case as a civil rights case, petitioner will be required to file a complaint on the form for prisoner civil rights cases used by this district.
Accordingly, IT IS HEREBY ORDERED that
1. The March 21, 2023, Order and Findings and Recommendations (ECF No. 6) are vacated;
2. Petitioner's motion to proceed in forma pauperis (ECF No. 2) is reinstated; and
3. The Clerk of the Court shall re-categorize this case as a civil rights action under 42 U.S.C. §1983.
Further, IT IS RECOMMENDED that
1. Petitioner's motion to proceed in forma pauperis be denied because he has incurred at least three strikes under 28 U.S.C. §1915(g); and
2. Petitioner be ordered to pay the $402 filing fee if he wishes to proceed with this case as a civil rights action under 42 U.S.C. §1983.
These findings and recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within thirty days after being served with these findings and recommendations, petitioner may file written objections with the court. The document should be captioned “Objections to Magistrate Judge's Findings and Recommendations.” Petitioner is advised that failure to file objections within the specified time may result in waiver of the right to appeal the district court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).