United States District Court, W.D. Oklahoma
KERRITH DUVALL, ROBERT E. COTNER, and DENNIS MARTIN, Plaintiffs,
UNITED STATES OF AMERICA, and STATE OF OKAHOMA, Defendants.
AMENDED REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE.
Robert E. Cotner, a state prisoner appearing pro se,
brings this action under 42 U.S.C. § 1983 claiming
violations of his constitutional rights. Doc. 1. Plaintiff
requests in forma pauperis (ifp) status, Doc.
States District Judge Joe Heaton has referred the matter to
the undersigned Magistrate Judge for initial proceedings
consistent with 28 U.S.C. § 636(b)(1)(B). Doc. 6. For
the following reasons, the undersigned recommends the denial
of Plaintiff's motion to proceed ifp pursuant to 28
U.S.C. § 1915(g), and the dismissal without prejudice of
this conditionally-filed action unless Plaintiff pays the
full $400 filing fee within twenty-one days from the date of
any order adopting this Report and Recommendation.
The three-strikes rule.
Prison Litigation Reform Act's (PLRA) “‘three
strikes rule, '” Hafed v. Fed. Bureau of
Prisons, 635 F.3d 1172, 1175 (10th Cir. 2011) (citation
omitted), was “‘designed [by Congress] to bring
[prisoner] litigation under control.'” Childs
v. Miller, 713 F.3d 1262, 1264-65 (10th Cir. 2013)
(citation omitted). “Under the PLRA, prisoners obtain a
‘strike' against them for purposes of future ifp
eligibility when their ‘action . . . in a court of the
United States . . . was dismissed on the grounds that it is
frivolous, malicious, or fails to state a claim upon which
relief may be granted . . . .”' Hafed, 635
F.3d at 1176 (quoting 28 U.S.C. § 1915(g)). Congress did
not bar a prisoner with three strikes from filing new civil
actions but, instead, eliminated a three-striker's
privilege of proceeding ifp “unless the prisoner is
under imminent danger of serious physical injury.” 28
U.S.C. § 1915(g).
Plaintiff had accumulated three strikes before he initiated
has filed many frivolous actions in this and other federal
courts. See, e.g., Cotner v. McCollum, No. 16-6023
(10th Cir. Feb. 10, 2016); Cotner v. Jones, No.
12-6276 (10th Cir. 2012); Cotner v. State, No.
10-6004 (10th Cir. Mar. 11, 2010); Cotner v.
Miles-LaGrange, No. CIV-14-269-HE (W.D. Okla. May 12,
2014); (Cotner v. McCollum, No. CIV14-137-HE (W.D.
Okla. May 9, 2014); and Cotner v. Jones, No.
CIV-12-781-HE (W.D. Okla. Oct. 23, 2012) (all unpublished
Plaintiff's allegations do not satisfy the
satisfy the imminent danger-exception, a prisoner is
“required to make ‘specific, credible allegations
of imminent danger of serious physical harm.'”
Hafed, 635 F.3d at 1179 (quoting Kinnell v.
Graves, 265 F.3d 1125, 1127-28 (10th Cir. 2001)).
“Every circuit to have decided the issue so far has
concluded that [§ 1915(g)'s] use of the present
tense shows that a prisoner must have alleged an imminent
danger at the time he filed his complaint.”
Id. Plaintiff fails to meet that standard here.
initial matter, Plaintiff has not notified the court of his
status as a three-striker or made a denominated attempt to
demonstrate he was “under imminent danger of serious
bodily injury” when he filed this action on January 22,
2018. 28 U.S.C. § 1915(g). Nor is the requisite showing
implicit from the allegations of his complaint. Doc. 1.
repeatedly mentions the “social contract between
tax-payers and U.S. Government, ” id. at 1,
and states that Oklahoma federal judges “refuse to
protect the rights of Plaintiffs under: United Nations
Congress Resolution on the prevention of crime and treatment
of offenders; the Universal Declaration of Human Rights;
United States Constitutional rights to protect
Plaintiff's rights against states violations of them, in
state court, and state prisons.” Id. Plaintiff
lists various statutes regarding, among other things,
bribery, financial interests of state officials, and
obstruction of justice. Id. at 3-4.
are not “specific, credible allegations” of a
present danger of physical harm. Smith v. Veterans
Admin., 636 F.3d 1306, 1309 (10th Cir. 2011) (internal
quotation marks omitted). Plaintiff provides no
specificity-date, place, or circumstances-regarding any of
these alleged violations. To meet the imminent-danger
exception, Plaintiff must allege harm that is “imminent
or occurring at the time the complaint is filed.”
Stine v. U.S. Fed. Bureau of Prisons, 465 F.
App'x 790, 793 (10th Cir. 2012) (internal quotation marks
Recommendation and notice ...