Pedro Rodriguez v. KATHLEEN ALLISON, Secretary for the California Department of Corrections

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PEDRO RODRIGUEZ,
Plaintiff-Appellant,
v.
KATHLEEN ALLISON, Secretary for the
California Department of Corrections and
Rehabilitation, CDCR Director; et al.,
Defendants-Appellees.
No. 19-55125
D.C. No.
5:18-cv-02651-AG-AGR
MEMORANDUM*
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.
FILED
MAY 4 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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

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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).

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