United States District Court, W.D. Oklahoma
JOHN C. DUVALL, Plaintiff,
JEFFREY COY TROUTT, Defendant.
STEPHEN P. FRIOT UNITED STATES DISTRICT JUDGE.
action is brought pursuant to 42 U.S.C. § 1983 by state
prisoner John C. Duvall, alleging violation of his federal
constitutional rights. Mr. Duvall appears pro se and
his pleadings are liberally construed.
magistrate judge issued a Report and Recommendation which
included three recommendations. Doc. no. 10. The Report
recommends: denying plaintiff's motion for leave to
proceed in forma pauperis (doc. no. 2); denying
plaintiff's motion for an imminent danger exception to
the three-strikes rule (doc. no. 3); and denying plaintiff's
motion brought under Rule 35, Fed. R. Civ. P., seeking an
independent medical examination and asking for the
preservation of medical evidence (doc. no 9).
objects to the Report and Recommendation. Doc. no. 11. All
objections have been considered de
to the Amended Complaint (doc. no. 7), Mr. Duvall alleges
deliberate indifference to his medical needs based on
inadequate treatment and an otherwise inadequate response to
his medical condition by defendant Jeffrey Coy Troutt, an
Oklahoma Department of Corrections physician working at the
James Crabtree Correctional Center. The medical condition is
an alleged growth in Mr. Duvall's throat. Among other
things, Mr. Duvall alleges that he suffers from constant pain
in his throat which has been getting worse since July 27,
2016, during which time the growth has been getting larger.
Mr. Duvall alleges that the defendant did not have the proper
equipment (such as a mirror) to examine the growth, and that
he did not refer Mr. Duvall for treatment by a specialist.
Mr. Duvall alleges that after his visits with the defendant
in August, 2016, he immediately wrote two requests to staff
addressing the inadequate treatment and that as of the date
of the amended complaint, he had not been referred to or seen
by anyone who has the appropriate medical implements. Mr.
Duvall alleges continuous suffering from the pain of choking,
as well as gagging, vomiting and burning of aspirated food
addition, in a letter submitted with his Rule 35 motion, Mr.
Duvall stated that he is “choking to death
slowly” and that he is “hopeful that maybe the
Attorney Generals' Office will do something to mitigate
the damages by getting me to a surgeon.” Doc. no. 8.
Second Amended Complaint was submitted to the court after the
Report was entered. Doc. no. 13. Although the Second Amended
Complaint was filed without leave of court, the court accepts
it. In that new version of the complaint, Mr. Duvall alleges,
among other things, that “Troutt refuses to treat my
serious medical needs consisting of a growth growing in my
air-way because I called him a liar in writing” (¶
29); that Troutt has retaliated against Mr. Duvall
(¶¶ 18-27); and that Mr. Duvall has attempted to go
around Troutt to obtain medical care, “all to no
avail.” ¶ 30. Various grievances, responses, and
requests to staff are attached to the Second Amended
Complaint as exhibits. The most recent of these exhibits
(doc. nos. 13-6 and 13-7) are dated in November and December
of 2016. These documents request medical treatment for the
growth in Mr. Duvall's throat.
to the Report's conclusion that Mr. Duvall had not shown
that he was entitled to an imminent danger exception to the
three-strikes rule was the fact that Mr. Duvall had not
alleged that he had sought or that he had been denied medical
care for what the Report characterized as the newly developed
and purportedly life-threatening symptoms of choking and
vomiting stemming from the growth in his throat.
See, doc. no. 10, p. 4. As noted above, however, Mr.
Duvall's Second Amended Complaint (which was not
available to the magistrate judge) appears to show that Mr.
Duvall has at least made some recent efforts to obtain
medical treatment for what he contends is a worsening and
potentially life-threatening medical condition. (In addition,
in his objection to the Report, Mr. Duvall takes issue with
the magistrate judge's characterization of choking and
vomiting as new symptoms which were not present when Mr.
Duvall saw Troutt in August. See, e.g.,
doc. no. 11, p. 3, asking “Who told Magistrate Jones
that the ‘symptoms of choking and vomiting stemming
from the growth' are new since I
initially saw Defendant Troutt?”)
Report finds, and the court agrees, that Mr. Duvall has three
strikes and that he may proceed in forma pauperis
only if he establishes that his circumstances come within the
imminent danger exception to the three-strikes rule, and only
then if he otherwise qualifies for pauper status under 28
U.S.C. § 1915. To qualify for the imminent danger
exception, a plaintiff must make specific, credible
allegations that, at the time he filed his complaint, he was
under imminent danger of serious physical harm. See,
Hafed v. Federal Bureau of Prisons, 635 F.3d 1172,
1179-80(10th Cir. 2011) (emphasis added) (internal
quotation marks omitted). Generally, such allegations must be
made in the prisoner's motion for in forma
pauperis status, however, other filings may also be
considered by the court. Id. at 1180. A plaintiff
seeking such an exception should make specific reference to
which defendant denied what medication or treatment, and for
what ailment, and on what occasion. Id. The
plaintiff should also identify at least the general nature of
the serious physical injury which he asserts is imminent.
Id. Vague and utterly conclusory assertions are
insufficient. Id. The court agrees with the
Magistrate Judge that based on the materials before the court
at the time the Report was entered, Mr. Duvall did not show
that he was entitled to invoke the imminent danger exception
to the three-strikes rule. Accordingly, as recommended in the
Report, Mr. Duvall's motions will be denied. In light of
the new allegations contained in the Second Amended
Complaint, however, Mr. Duvall should be given the
opportunity to file new motions which cite additional
information not previously available to the Magistrate Judge.
the Report and Recommendation is ACCEPTED,
AFFIRMED and ADOPTED. Mr.
Duvall's objections to the Report are
DENIED. As recommended in the Report, the
motion to proceed in forma pauperis (doc. no. 2) is
DENIED; the motion seeking an imminent
danger exception to the three-strikes rule (doc. no. 3) is
DENIED; and the Rule 35 motion is
DENIED. In light of new allegations in the
Second Amended Complaint which potentially address the
imminent danger exception, all of these motions are denied
without prejudice to consideration de novo, in the
event that Mr. Duvall files a new motion or motions seeking
leave to proceed in forma pauperis under the
imminent danger exception, citing additional information not
presented to the magistrate judge in the original motions. If
Mr. Duvall opts to pursue that relief, any such motions are
DUE within twenty-one days of the date of
this order. If no such motions are filed, this action will be
closed at that time and judgment will be entered based on the
findings in this order.
 The three-strikes rule, and the
imminent danger exception, are set out in 28 U.S.C. §
1915(g), which is quoted in the Report, doc. ...