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Duvall v. Oklahoma State Board of Osteopathic Examiners

United States District Court, W.D. Oklahoma

April 4, 2017

JOHN C. DUVALL, Plaintiff,
v.
OKLAHOMA STATE BOARD OF OSTEOPATHIC EXAMINERS et al., Defendants.

          REPORT AND RECOMMENDATION

          CHARLES B. GOODWIN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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.

         I. Background

         Plaintiff 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.[1] 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).

         The 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).

         III. Plaintiff's Prior Occasions

         Plaintiff 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 . . . .”).

         IV. Application of 28 U.S.C. § 1915(g)

         Because 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 Cir. 2011).

         Plaintiff 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. at 5-7.

         In Case 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, ...


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