Opinion

Shai Alkebu-Lan v. Zachary Brown

Court
District Court, N.D. California
Filed
Nov 22, 2021
Cited by
0 cases
Authority
More cited than 18.8%

The opinion

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4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

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7 SHAI ALKEBU-LAN, Case No. 21-cv-06249-JST

8 Plaintiff,

ORDER ADMINISTRATIVELY

9 v. CLOSING CASE AS FILED IN ERROR

10 ZACHARY BROWN, et al.,

Defendants.

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13 Plaintiff, an inmate at California Men’s Colony (“CMC”) in San Luis Obispo, California,

14 has filed a pro se action pursuant to 42 U.S.C. § 1983. For the following reasons, the Court will

15 CLOSE this case as filed in error.

16 DISCUSSION

17 I. Procedural History

18 Plaintiff commenced this action by filing a complaint in the Central District of California

19 on or about July 26, 2021. ECF No. 1. The complaint names as defendants Correctional Training

20 Facility – Soledad (“CTF-Soledad”) correctional officer Zachary Brown, C. Bravo, M. Daguio,

21 and Warden Koenig. In relevant part, the complaint alleges that on June 8, 2017, Plaintiff was

22 raped by, or at the direction of, defendants Brown, Bravo, and Daguio; that on May 13, 2018

23 defendants ordered correctional officers to interfere with Plaintiff’s mail attempting to report this

24 rape to outside authorities; and that the Board of Parole Hearings (BPH) commissioners Troy

25 Taira and Nga Lam, and BPH psychologists Hazelwood and Wizniewski have conspired with

26 correctional officials at CMC and CTF-Soledad to prevent him receiving the following COVID-19

27 relief: parole and medical care. Plaintiff requests monetary damages, termination of all parties for

1 record.” See ECF No. 1 at 1-7.

2 On July 29, 2021, Plaintiff’s request for leave to proceed in forma pauperis was granted.

3 ECF No. 5.

4 On August 9, 2021, Plaintiff requested that this action be transferred to this district because

5 the events alleged occurred in this district. ECF No. 8. On August 10, 2021, Plaintiff’s request

6 was granted, and this action was transferred to this district. ECF Nos. 9, 10, 12.

7 While this action was pending, Plaintiff commenced a separate action in this court. On or

8 about August 6, 2021, Plaintiff filed the following action in this court: C No. 21-cv-0603 JST,

9 Alkebu-Lan v. Hazelwood et al. (“Alkebu-Lan I”). In Alkebu-Lan I, he named as defendants Board

10 of Parole Hearing (“BPH”) psychologists Lisa Hazelwood and Emily Wiznewski; BPH

11 commissioners Troy Taira and Nga Lam; Correctional Training Facility Soledad correctional

12 officer Zachary Brown; and California Deputy Attorney General Anthony Tartaglio. ECF No. 1 at

13 2. Alkebu-Lan I challenges the BPH’s 2021 denial of his petition for relief due to COVID-19, and

14 requests monetary damages, that the BPH decision be reviewed, and that the named defendants be

15 terminated for conspiring to conceal exhausted grievances and for manipulating the courts. See

16 ECF No. 1 at 3, 12-13.

17 II. Discussion

18 The Court has reviewed the complaints in both this action and in Alkebu-Lan I. The two

19 actions differ in the following two ways. While the two actions both name Zachary Brown as a

20 defendant, the other named defendants differ. The two actions seek the termination of the

21 defendants named in that action, and Alkebu-Lan I also seeks a review of the 2021 parole denial.

22 However, both actions challenge the same issue, the BPH’s 2021 denial of parole. This action

23 appears to be duplicative of Alkebu-Lan I. Duplicative or repetitious litigation of virtually

24 identical causes of action is subject to dismissal under 28 U.S.C. § 1915 as malicious. Bailey v.

25 Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988). An in forma pauperis complaint that merely

26 repeats pending or previously litigated claims may be considered abusive and dismissed under

27 § 1915. Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995); Bailey, 846 F.2d at 1021.

1 presume that one of these actions was filed in error. As this is the action with the higher case

2 || number, the Court administratively CLOSES this action as filed in error.!

3 CONCLUSION

4 For the reasons set forth above, the Court CLOSES this action as filed in error. The Clerk

5 of the Court shall CLOSE this action.

6 IT IS SO ORDERED.

7 || Dated: November 22, 2021 .

8 JON S. TIGA

9 nited States District Judge

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25 ' If Plaintiff believes the Court has erred in finding that this action was filed in error, he may file a

26 || motion to reopen this case. Any motion to reopen must address whether this action is duplicative

or repetitive. The Court notes that it appears that Plaintiff may not be eligible for in forma

07 pauperis status pursuant to 42 U.S.C. § 1915(g), Alkebu-Lan v. Kane, et al., Case No. 06-5991

CW, “Order of Dismissal” (Aug. 25, 2009, ECF No. 17). Should this case be reopened and

28 allowed to proceed, Plaintiff would need to address whether his in forma pauperis status should be

revoked.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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