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Duvall v. United States

United States District Court, W.D. Oklahoma

March 12, 2018

KERRITH DUVALL, ROBERT E. COTNER, and DENNIS MARTIN, Plaintiffs,
v.
UNITED STATES OF AMERICA, and STATE OF OKAHOMA, Defendants.

          AMENDED REPORT AND RECOMMENDATION

          SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Robert E. Cotner, a state prisoner appearing pro se, [1] 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. 9.[2]

         United 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.

         I. Analysis.

         A. The three-strikes rule.

         `The 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).

         B. Plaintiff had accumulated three strikes before he initiated this action.

         Plaintiff 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 orders).

         C. Plaintiff's allegations do not satisfy the imminent-danger exception.

         To 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.

         As an 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.

         Plaintiff 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.

         These 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 omitted).

         II. Recommendation and notice ...


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