United States District Court, W.D. Oklahoma
MARCUS D. WOODSON, Plaintiff,
TRACY McCOLLUM, et al., Defendants.
TIMOTHY D. DEGIUSTI UNITED STATES DISTRICT JUDGE.
December 12, 2016, Plaintiff, a state prisoner appearing
pro se, filed this civil rights action under 42
U.S.C. §§ 1981, 1983, 1985(2) and (3), and 1986 in
the District Court of Oklahoma County, Oklahoma. See
Pet. [Doc. No. 1-4], Case No. CV-16-2564. Plaintiff proceeded
in state court in forma pauperis. See Appl.
for IFP [Doc. No. 1-6]; Order Granting IFP [Doc. No. 1-7].
Defendants removed the action to federal court under 28
U.S.C. §§ 1441(a), 1446(a), and Fed.R.Civ.P.
81(c)(1), and paid the $400 filing fee. See Notice
of Removal [Doc. No. 1] at 1; Receipt No. 1087-2431989.
matter is before the Court for review of the Report and
Recommendation issued by Magistrate Judge Gary M. Purcell on
February 6, 2017 [Doc. No. 7]. Upon initial screening, Judge
Purcell recommends this action be dismissed without prejudice
based on Plaintiff being subject to filing restrictions under
the “three strikes” provision of 28 U.S.C. §
1915(g). See R. & R. [Doc. No. 7] at 5.
Plaintiff has timely objected [Doc. No. 9], triggering de
novo review of the factual and legal issues raised in
contends the “three strikes” provision of §
1915(g) is unconstitutional, and that he “should be
allowed to dispute whether a [prior] dismissal is even
properly classified as a strike.” Obj. [Doc. No. 9] at
3, 7. Plaintiff further contends that the federal courts have
not resolved whether, without complying with § 1915(g),
a “three strikes” plaintiff may continue to
litigate in federal court once the case is removed by the
defendant. See Id. at 4. Relying on Bartelli v.
Beard, No. 3:CV-08-1143, 2008 WL 4363645 (M.D. Pa. Sept.
24, 2008), Plaintiff requests the Court remand this case back
to state court where § 1915(g) is inapplicable.
Id. at 5-6.
first two contentions have no factual or legal basis, and
require no lengthy analysis here. First, the
constitutionality of § 1915(g) has been established.
See White v. State of Colo., 157 F.3d 1226, 1235
(10th Cir. 1998) (joining with “the Eleventh, Sixth,
and Fifth Circuits in concluding that § 1915(g) does not
violate the guarantees of equal protection and due process,
” and rejecting the plaintiff's constitutional
challenge of the statute) (citing Wilson v. Yaklich,
148 F.3d 596, 604-05 (6th Cir. 1998); Rivera v.
Allin, 144 F.3d 719, 727-28 (11th Cir. 1998),
abrogated on other grounds by Jones v. Bock, 549
U.S. 199 (2007); Carson v. Johnson, 112 F.3d 818,
821-22 (5th Cir. 1997)). Second, Plaintiff's status as a
frequent litigator subject to the restrictions of §
1915(g) was previously decided in Marcus D. Woodson v.
William Barlow, et al., No. CIV-11-1349-D (W.D. Okla.
2011), Order [Doc. No. 8] at 4, Dec. 21, 2011
(“Plaintiff has at least three ‘prior
occasions' or strikes, and is subject to . . . §
federal courts are split on the applicability of §
1915(g) to a “three strikes” plaintiff whose case
is removed to federal court, Plaintiff's reliance on
Bartelli is misplaced. In that case, the Middle
District of Pennsylvania remanded a § 1983 cause of
action to avoid the possible “denial of an indigent
litigant's right to appeal.” Bartelli,
2008 WL 4363645, at *2. Bartelli is not binding on
this Court. Still, “no Tenth Circuit case law squarely
addresses § 1915(g)'s effect on a prisoner plaintiff
who is proceeding in forma pauperis in state court and,
without paying federal filing fees, is removed to federal
court.” Evans, infra note 2, at *3.
Therefore, the Court looks to the other circuit courts and
district courts within the Tenth Circuit for guidance.
Evans, infra note 2, the court followed the
Fourth and Eleventh Circuits which determined that actions
involving inmates barred by § 1915(g) who filed
petitions in state court, once properly removed,
“should be decided in federal court according to
federal law.” Id. at *2 (citing Lisenby v.
Lear, 674 F.3d 259, 263 (4th Cir. 2012); Lloyd v.
Benton, 686 F.3d 1225, 1228 (11th Cir. 2012)). The same
circuits further “reasoned that § 1915(g) does not
deprive district courts of subject matter jurisdiction, and
no other legal authority supported remand of the
action[s].” Id. Accordingly, the
Evans court granted the defendants' motion to
dismiss pursuant to § 1915(g). Id. at *3.
Similarly, in Lynn v. Peltzer, No. 16-3096-JTM-DJW,
2016 WL 4060272 (D. Kan. July 29, 2016) (unpublished slip
op.), appeal dismissed sub nom. Lynn v. Peltzer,
et al. (Aug. 24, 2016), the court relied on the
reasoning of the Fourth and Eleventh Circuits and held that a
“three strikes” plaintiff was required to comply
with § 1915(g) once his case was properly removed.
Id. at *1.
the above reasoning, the Court agrees with Judge Purcell
that, although Defendants properly removed this case and paid
the full filing fee, the requirements of 28 U.S.C. §
1915(g) are still applicable to Plaintiff. R. & R. [Doc.
No. 7] at 3-4. Plaintiff must “‘either pre-pay in
full all filing fees or make a showing of imminent danger of
serious physical injury.'” Lynn, 2016 WL
4060272, at *3 (quoting Lisenby, 674 F.3d at
262-63); see also Hafed v. Fed. Bureau of Prisons,
635 F.3d 1172, 1176 (10th Cir. 2011). As mentioned, the
filing fee here was paid by the removing defendants.
Additionally, Plaintiff's Petition [Doc. No. 1-4] does
not meet the imminent danger exception. See R. &
R. [Doc. No. 7] at 5; see also Hafed, 635 F.3d at
1179-80 (requiring imminent danger to be alleged when the
complaint is filed, and noting that “[v]ague and
utterly conclusory assertions are insufficient” to
support such allegation). Plaintiff does not deny that he
failed to meet the imminent danger exception, but asserts
only that he was not required to plead imminent danger in his
state court action. See Obj. [Doc. No. 9] at 7.
Plaintiffs allegations focus on previous, rather than
present, circumstances in connection with his confinement.
Accordingly, the Court finds that Plaintiff is a “three
strikes” litigant, who has not paid the filing fee, and
who has not made specific, credible allegations of imminent
THEREFORE ORDERED that Plaintiffs Objection [Doc. No. 9] is
hereby OVERRULED, and the Report and Recommendation [Doc. No.
7] is ADOPTED in its entirety.
FURTHER ORDERED that this case is DISMISSED without prejudice
to refiling pursuant to 28 US.C. § 1915(g).
 Pursuant to Fed.R.Civ.P. 72(b)(3),
where the district court refers dispositive matters to a
magistrate judge for a report and recommendation, the
district court “must determine de novo any
part of the magistrate judge's disposition that has been
properly objected to.” Id.; 28 U.S.C. §