United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
matter is before the court on Plaintiff Dukhan Mumin's
“Response to Show Cause.” (Filing No.
9.) For the reasons explained below, the court will
dismiss this action without prejudice.
is currently confined at the Tecumseh State Correctional
Institution and serving a sentence of 10 to 20 years'
imprisonment as a result of a conviction from the District
Court of Lancaster County, Nebraska for possession of cocaine
with the habitual offender enhancement. (Filing No. 1 at
CM/ECF p. 1, ¶ 1.) Plaintiff has challenged this
same judgment of conviction in earlier federal habeas corpus
litigation, and the court takes judicial notice of the
records in those cases. See Mumin v. Frakes, No.
4:16CV3033, Filing No. 52 (D. Neb.) (dismissing
petition for writ of habeas corpus brought pursuant to 28
U.S.C. § 2254 with prejudice); Mumin v.
Hansen, No. 4:17CV3164, Filing No. 14 (D. Neb.)
(dismissing § 2254 petition as successive); Mumin v.
Hansen, No. 4:17CV3169, Filing No. 12 (D. Neb.)
(same); Mumin v. Hansen, No. 4:18CV3015, Filing
No. 7 (D. Neb.) (same); Mumin v. Hansen, No.
8:18CV102, Filing No. 9 (D. Neb.) (same).
January 31, 2019, Plaintiff filed a Petition for Declaratory
Judgment pursuant to 28 U.S.C. § 2201, seeking a
declaration that Neb. Rev. Stat. §§ 29-2221, 83-1,
107, and 83-1, 110 are unconstitutional both facially and as
applied to him. (Filing No. 1.) Plaintiff filed a
Motion for Leave to Proceed in Forma Pauperis on February 15,
2019. (Filing No. 5.)
February 22, 2019, the court required Plaintiff to show cause
why he is entitled to proceed in forma pauperis
(“IFP”) in this action. (SeeFiling No.
7.) The court has previously determined that three or
more federal cases brought by Plaintiff, while a prisoner,
were dismissed as frivolous or for failure to state a claim.
See Mumin v. McLaughlin, et al., No. 8:17CV100
(D.Neb.) (Filing No. 6, March 27, 2017 Memorandum
and Order identifying “three strikes”). The
Prison Litigation Reform Act (“PLRA”) prevents a
prisoner with “three strikes” from proceeding IFP
unless the prisoner is under imminent danger of serious
physical injury. 28 U.S.C. 1915(g). Plaintiff responded to
the court's order on March 7, 2019. (Filing No.
response to the court's show-cause order, Plaintiff
argues he should be able to proceed IFP in this action
because this case “does [not] fall within the meaning
of a civil action under 28 U.S.C. 1915(g), because this does
not concern the conditions of confinement.” (Filing
No. 9.) Plaintiff requests an additional fifteen days to
pay the filing fee if he “is forced to pay the full fee
in spite of that.” (Id.)
assertion that his declaratory judgment action is not a
“civil action” within the meaning of 28 U.S.C.
§ 1915(g) lacks merit and is contrary to the plain
language of the statute. Pursuant to the Prison Litigation
Reform Act (“PLRA”), a prisoner cannot
bring a civil action . . . or proceeding [IFP] if the
prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action .
. . in a court of the United States that was dismissed on the
grounds that it is frivolous, malicious, or fails to state a
claim upon which relief may be granted, unless the prisoner
is under imminent danger of serious physical injury.
28 U.S.C. § 1915(g). A “civil action” is not
limited to only those actions that challenge a prisoner's
conditions of confinement. Indeed, courts have consistently
applied the provisions of section 1915 to all manner of civil
actions brought by prisoners, including declaratory judgment
actions. See, e.g., United States v. Jones,
215 F.3d 467 (4th Cir. 2000) (prisoner's post-conviction
motion for the return of property is a “civil
action” for purposes of provision of PLRA requiring
that a prisoner who brings a civil action or appeal must pay
the full filing fee; that provision is not limited to
prisoner civil rights cases); In re Tyler, 110 F.3d
528 (8th Cir. 1997) (applying § 1915(g) three strikes
provision of PLRA to state prison inmate's mandamus
petition arising from ongoing civil rights lawsuit against
prison officials); Hill v. City of St. Louis, No.
4:14CV1813 RWS, 2015 WL 224998, at *1 (E.D. Mo. Jan. 15,
2015) (assessing initial partial filing fee pursuant to 28
U.S.C. § 1915(b) in prisoner's action for
declaratory judgment pursuant to 28 U.S.C. § 2201);
Boccio v. Am. Bible Soc., 637 F.Supp.2d 65 (D. Mass.
2009) (inmate proceeding IFP in breach of contract action was
not exempted from paying filing fee pursuant to PLRA and 28
U.S.C. § 1915, where inmate's claim did not concern
prison conditions); Adamson v. Schwarz, No.
3:09CV49, 2009 WL 928699, at *2 (N.D. Fla. Apr. 2, 2009)
(dismissing plaintiff prisoner's action for declaratory
relief, filed pursuant to 28 U.S.C. § 1651, under
“three strikes” provision of PLRA).
28 U.S.C. § 1915(g) applies to Plaintiff's
declaratory judgment action, the court must consider whether
Plaintiff has demonstrated he “is under imminent danger
of serious physical injury.” Plaintiff's response
contains no argument or facts to suggest he faces any threat
of injury, nor do the allegations of Plaintiff's
Complaint support a finding of imminent physical harm as
required by § 1915(g). Plaintiff effectively concedes a
lack of imminent harm and, instead, seeks additional time in
which to pay the court's filing fee. However, the court
finds it unnecessary to grant Plaintiff's request for an
extension as Plaintiff's Complaint fails to state a claim
upon which relief can be granted.
court is required to review prisoner and in forma pauperis
complaints seeking relief against a governmental entity or an
officer or employee of a governmental entity to determine
whether summary dismissal is appropriate. See 28
U.S.C. §§ 1915(e) and 1915A. The court must dismiss
a complaint or any portion of it that states a frivolous or
malicious claim, that fails to state a claim upon which
relief may be granted, or that seeks monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
1915(e)(2)(B); 28 U.S.C. § 1915A(b). Pro se plaintiffs
must set forth enough factual allegations to “nudge
their claims across the line from conceivable to plausible,
” or “their complaint must be dismissed.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70
(2007); see also Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (“A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.”). However, “[a] pro
se complaint must be liberally construed, and pro se
litigants are held to a lesser pleading standard than other
parties.” Topchian v. JPMorgan Chase Bank,
N.A., 760 F.3d 843, 849 (8th Cir. 2014) (internal
quotation marks and citations omitted).
Plaintiff claims the habitual offender statute, Neb. Rev.
Stat. § 29-2221, and the statutes relating to
calculation of a prisoner's good time, Neb. Rev. Stat.
§§ 83-1, 107 and 83-1, 110, violate due process,
equal protection, separation of powers, the Sixth Amendment,
and the Ex Post Facto Clause, among others. Essentially,
Plaintiff claims his conviction and sentence under these
statutes were unconstitutional because he had no notice that
he would not receive good time towards his mandatory minimum
habitual offender sentence and the habitual offender statute
impermissibly allows the trial court to determine facts that
increase an offender's punishment. Plaintiff has
presented similar claims in several of his prior habeas
actions, all of which were dismissed due to Plaintiff's
failure to seek authorization from the Eighth Circuit ...