Muhammad v. Workman

• Decision Date: 05 November 2012
• Docket Number: No. CIV 12-0944-RAW-SPS,CIV 12-0944-RAW-SPS
• Court: U.S. District Court — Eastern District of Oklahoma
• Parties: AB'DULLAH L. R. MUHAMMAD, Plaintiff, v. RANDALL G. WORKMAN, et al., Defendants,

AB'DULLAH L. R. MUHAMMAD, Plaintiff,

v.RANDALL G. WORKMAN, et al., Defendants,

No. CIV 12-0944-RAW-SPS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA

Dated: November 5, 2012

OPINION AND ORDER

Plaintiff appealed the denial of his motion for leave to proceed in forma pauperis in this action, and the Tenth Circuit Court of Appeals remanded for this court "to revisit the evidentiary basis for its decision" that was based on the three-strike rule of 28 U.S.C. § 1915(g). Muhammad v. Workman, No. 12-7035, slip op. at 3 (10th Cir. Oct. 2, 2012). The Tenth Circuit also directed this court to "ensure that the record includes a copy of each memorandum order and judgment or other decision that serves as a basis for a strike." Id.

Plaintiff alleged in his complaint that "neither [sic] of the [eleven previously dismissed actions or appeals listed] have ever been dismissed as frivolous, malicious, or for failure to state a claim upon which relief could be granted." (Docket No. 1 at 16). The court, however, found he had accumulated at least three prior civil rights actions dating back to 1986 that qualified as "strikes." Plaintiff's suits dismissed prior to the 1996 enactment of the Prison Litigation Reform Act were included as strikes, pursuant to Day v. Maynard, 200 F.3d 665, 667 (10th Cir. 1999) (citing Green v. Nottingham, 90 F.3d 415, 418-20 (10th Cir. 1996)).

In Muhammad v. Morton, No. CIV-05-713-T (W.D. Okla. Mar. 15, 2006), the district court conducted a de novo review of the record before adopting in its entirety the Magistrate Judge's recommendation that the action be dismissed for failure to state a claim and that he be assessed one "strike" under 28 U.S.C. § 1915(g). Id., slip op. at 2-4; Report and Recommendation at 19.

. . . [T]he Amended Complaint asserts three claims: Count I, a claim under 42 U.S.C. § 1983 of denial of access to the courts (access to the law library and current research materials); Count II, a claim under 42 U.S.C. § 1985 of conspiracy to deny Plaintiff of constitutional rights (access to the courts); and Count III, a claim under 42 U.S.C. § 1986 of failure to prevent a constitutional violation (as alleged in Count I). Judge Purcell correctly concludes as to Counts II and III that each fails to state a claim for relief and should be dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(l). Judge Purcell also correctly concludes that Defendants are entitled to summary judgment on Count I. Notwithstanding Plaintiff's current allegations that he has been refused law library access in recent months, the record plainly shows he was regularly provided physical access to the law library on 78 occasions between February 2004 and the filing of this case in June 2005, and that he was able to pursue numerous civil claims during that time.

No federal case filed in that period failed on the merits; each was dismissed due to Plaintiff's failure to exhaust administrative remedies. . . . Regardless of the outcome, however, these facts demonstrate Plaintiff was not denied access to the courts as alleged. Defendants are therefore entitled to summary judgment on Count I.

Muhammad, No. CIV-05-713-T, slip op. at 2-3 (citations omitted). The Tenth Circuit denied plaintiff leave to proceed on appeal in forma pauperis and denied his appeal in Muhammad v. Morton, No. 06-6122 (10th Cir. July 31, 2006). See Attachment 1 to this Opinion and Order.

In Muhammad v.Cody, No. CIV-92-1963-W (W.D.Okla.May21,1993), the district court adopted the Magistrate Judge's Findings and Recommendations regarding plaintiff's claims of conspiracy to deny him access to the courts, retaliation, and cruel and unusual punishment:

[T]he court DISMISSES Plaintiff's claims (1) that Defendants interfered with Plaintiff's right of access to the courts by preventing him from assisting other inmates in their litigation and (2) that Defendants retaliated against him for exercising his right of access to the courts as frivolous under 28 U.S.C. § 1915(d). The court also DISMISSES Plaintiff's claim of a conspiracy to deprive him of his right of access to the courts pursuant to Rule 12(b)(6), Fed. R. Civ. P. In addition, the Court GRANTS summary judgment pursuant to Rule 56, Fed. R. Civ. P., in favor of Defendants on Plaintiff's claims that his constitutional rights were violated by his placement in segregated housing following the filing of a disciplinary charge against him and (2) that while Plaintiff was in restrictive housing, Defendants refused to bring him unidentified "legal material" and "legal files" and "illegally opened"unspecified "legal mail."

Id., slip op. at 2. See Attachment 2 to this Opinion and Order.

In Muhammad v. Bellmon, No. CIV-90-1608-R (W.D. Okla. Jan. 17,1991), plaintiff alleged he was denied equal protection and due process, and he had been subjected to cruel and unusual punishment. Id., slip op. at 1-2. The district court found he "ha[d] not presented a rational argument supported by law or facts and there [were] no redressible constitutional defects." Id., slip op. at 12. The court further held that any appeal "would not be taken in good faith and it would be a frivolous exercise at the unjustified expense of the taxpayers." Id. See Attachment 3 to this Opinion and Order.

Young v. Nigh, No. CIV-86-2337-R (W.D. Okla. July 27,1988), the fourth prior case considered by the court, was a civil rights lawsuit filed under plaintiff s previous name of Harvey Lee Young.¹ Although the case file has been destroyed, the docket sheet and Judgment in this matter are available. See St. Louis Baptist Temple v. Fed. Deposit Ins. Corp., 605 F. 2d 1169, 1172 (10th Cir. 1979) (holding that "federal courts, in appropriate circumstances, may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue."). See also DuBuc v. Boone, No. 95-7150, 1996 WL 194832, at *1 (10th Cir. Apr. 23, 1996) (unpublished opinion) (citing St. Louis Baptist Temple and Fed. R. Evid. 201 in support of the district court's sua sponte judicial notice of the docket sheet for a proceeding in another federal court). In this action the Judgment stated that the district court had concluded "there [was] no genuine issue of material fact and that defendants [were] entitled to judgment as a matter of law." Id. See Attachment 4 to this Opinion and Order.

Plaintiff alleges in his present complaint that he is being denied the right to practice his religion and to receive religious meals. The court again finds his allegations fail to set forth a credible claim that he is in imminent danger of serious physical injury and that hequalifies for the exception in 28 U.S.C. § 1915(g).

ACCORDINGLY, the court again finds that plaintiff's motion for leave to proceed in forma pauperis should be denied, pursuant to 28 U.S.C. § 1915(g), and he should forward the entire $350.00 filing fee to the Court Clerk.

IT IS SO ORDERED this 5th day of November 2012.

_________________

RONALD A. WHITE

UNITED STATES DISTRICT JUDGE

ATTACHMENT 1

Muhammad v. Morton, No. CIV-05-713-T (W.D. Okla. Mar. 15, 2006).

• Report and Recommendation, entered January 10, 2006.

• Order dismissing action, entered March 15, 2006.

• Judgment entered March 15, 2006.

• Muhammad v. Morton, No. 06-6122 (10th Cir. July 31, 2006), denying leave to proceed on appeal in forma pauperis and dismissing appeal.

AB'DULL AH LAMAR RASHID MUHAMMAD, Plaintiff,

v.

DEBBIE MORTON, et al., Defendants.

CIV-05-713-T

REPORT AND RECOMMENDATION

Plaintiff, a state prisoner appearing pro se and in forma pauperis, brings this civil rights action pursuant to 42 U.S.C. § 1983. Named as Defendants in the Amended Complaint filed July 14, 2005, are Oklahoma Department of Corrections ("DOC") official Debbie Morton, Oklahoma State Penitentiary ("OSP") Warden Mike Mullin, OSP correctional officer Rocky Bingham, and OSP law library supervisor Wayne Brakensiek. Defendants have moved to dismiss the cause of action and, alternatively, for summary judgment, to which Plaintiff has responded. Defendants have also caused the filing of a special report consistent with Martinez v. Aaron, 570 F.2d 317 (10lh Cir. 1978). The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U. S.C.§636(b)(l)(B). For the following reasons, it is recommended that the Defendants' motions be granted as set forth herein.

I. Background

Plaintiff is an Oklahoma inmate who has been incarcerated since 1989 serving multiple, consecutive sentences for convictions for violent offenses, including robbery with a firearm and kidnaping, both after former conviction of two or more felonies, and use of a firearm while committing a felony. He was most recently transferred to OSP in November 2003, where he was confined at the time he filed this cause of action. Special Report, art. 1 (Plaintiff's Consolidated Record Card).

In his Amended Complaint, Plaintiff sets forth the nature of his case in twenty-eight separately-numbered paragraphs. As grounds for relief, Plaintiff alleges in count one that he has been denied his constitutional right of access to the courts in violation of the First, Sixth, and Fourteenth Amendments and the Privileges and Immunities Clause of Article IV of the Constitution. As support for this claim, Plaintiff refers to "his allegations contained in paragraphs 1 through 28 above" and asserts that he is being denied his right of access to the courts "by being denied adequate access to the O.S.P. law library and access to up-to-date case law materials by Defendants Brakensiek and Bingham." Plaintiff alleges that these Defendants' actions "are being condoned and encouraged by there [sic] supervisors, Defendants Morton (Designee for Director) and Mullins [sic] (Warden)." Amended Complaint, at3,3A. Plaintiff further alleges that as a result of Defendants' interference with his right of access to the courts "in at least two ...