United States District Court, W.D. Oklahoma
JOHN C. DUVALL, Plaintiff,
OKLAHOMA STATE BOARD OF OSTEOPATHIC EXAMINERS et al., Defendants.
REPORT AND RECOMMENDATION
CHARLES B. GOODWIN UNITED STATES MAGISTRATE JUDGE.
John C. Duvall is a state prisoner appearing pro se in this
“diversity & civil rights” action. Compl.
(Doc. No. 1) at 1. United States District Judge Stephen P.
Friot has referred this matter to the undersigned Magistrate
Judge for initial proceedings in accordance with 28 U.S.C.
§ 636. For the following reasons, it is recommended that
Plaintiff's Application for Leave to Proceed In Forma
Pauperis (“Pl.'s IFP Appl., ” Doc. No.
2) be denied and that this conditionally filed action be
dismissed without prejudice unless Plaintiff pays the full
$400.00 filing fee within twenty-one days from the date of
any order adopting this Report and Recommendation.
is a Missouri state prisoner incarcerated at James Crabtree
Correctional Center (“JCCC”) in Helena, Oklahoma.
Compl. at 1. Plaintiff asserts federal and state-law claims
against Dr. Jeffrey Troutt, an employee of the Oklahoma
Department of Corrections (“ODOC”), and the
Oklahoma State Board of Osteopathic Examiners
(“OSBOE”). See Id. at 1-2. Plaintiff claims
that on August 9, 2016, and thereafter, Defendant Troutt
showed deliberate indifference to Plaintiff's serious
medical needs, retaliated against Plaintiff, and
intentionally inflicted emotional distress against Plaintiff
in the course of treating a growth in Plaintiff's
trachea. See Id. at 2, 3-19, 24-25. Plaintiff claims
that OSBOE has negligently failed to act upon complaints
regarding Defendant Troutt and has unlawfully treated
complaints submitted by inmates differently from complaints
submitted by noninmates. See Id. at 19-23.
II.The Prison Litigation Reform Act Prisoners who
wish “to bring a civil action . . . without prepayment
of fees or security therefor” must seek leave to
proceed in forma pauperis pursuant to the Prison
Litigation Reform Act (“PLRA”) and are subject to
the “three-strikes” rule of 28 U.S.C. §
1915(g). See 28 U.S.C. § 1915(a)(2), (g).
three-strikes rule provides:
In no event shall a prisoner bring a civil action . . . under
this section if the prisoner has, on 3 or more prior
occasions, while incarcerated or detained in any facility,
brought an action or appeal 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.
Id. § 1915(g). In the absence of imminent
physical danger, this statutory provision “requires
so-called ‘frequent filer' prisoners to prepay the
entire filing fee before federal courts may consider their
civil actions and appeals.” Childs v. Miller,
713 F.3d 1262, 1265 (10th Cir. 2013) (internal quotation
marks omitted); see also Coleman v. Tollefson, 135
S.Ct. 1759, 1762 (2015).
Plaintiff's Prior Occasions
acknowledges he acquired three strikes prior to filing this
lawsuit on March 6, 2017. See Pl.'s IFP Appl. at
5. See also R. & R., Duvall v. Troutt,
No. CIV-14-1384-F (W.D. Okla.) (Doc. No. 7 (Jan. 29, 2015))
(finding three strikes based on Duvall v. Soc. Sec.
Admin., No. 05-4019-CV-C-SOW (W.D. Mo.), Duvall v.
Dempsey, No. 2:05-CV-73-ERW (E.D. Mo.), and Duvall
v. Elder, No. 05-4330-CV-C-NKL (W.D. Mo.)), adopted
in relevant part, Order (Doc. No. 9 (Mar. 11, 2015));
Duvall v. Troutt, No. CIV-16-1488-F, 2017 WL 782504,
at *2 (W.D. Okla. Feb. 28, 2017) (“[T]he court agrees .
. . that Mr. Duvall has three strikes . . . .”).
Application of 28 U.S.C. § 1915(g)
Plaintiff acquired at least three strikes prior to filing
this lawsuit, Plaintiff is not entitled to proceed in
forma pauperis absent a showing that he is “under
imminent danger of serious physical injury.” 28 U.S.C.
§ 1915(g); see Duvall, 2017 WL 782504, at *2;
Smith v. Veterans Admin., 636 F.3d 1306, 1309 (10th
alleges that he is entitled to application of this exception.
See Pl.'s IFP Appl. at 5-7. In support,
Plaintiff alleges that: the obstruction in his airway is
growing and he may “cho[ke] to death” or
“become terminal” from untreated throat cancer;
he “vomits an average of 7 times a week” and
suffers pain when he “dry swallows”; and he has a
“pre-cancerous lesion” on his shoulder that
unidentified individuals have refused to treat. Id.
Number CIV-16-1488-F, Plaintiff likewise alleged in support
of an attempt to invoke the imminent-danger exception that
his throat condition could result in choking and vomiting. R.
& R. at 3-5, ...