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Demos v. U.S. Solicitor General

United States District Court, W.D. Oklahoma

January 31, 2019

JOHN ROBERT DEMOS, Plaintiff,
v.
THE U.S. SOLICITOR GENERAL, et.al., Defendants.

          REPORT AND RECOMMENDATION

          GARY M. PURCELL, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, a state prisoner appearing pro se, initiated this action on January 7, 2019. Doc. No. 1. Currently before the Court is Plaintiff's Application for Leave to Proceed In Forma Pauperis. Doc. No. 6. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the following reasons, it is recommended that the Application be denied.

         1. Background Information

         Plaintiff initiated this action by filing a five page handwritten document on basic notebook paper, rather than a court approved form for a Complaint or Petition. Doc. No. 1. Upon receipt, the Clerk of Court construed the filing as a Petition for Writ of Habeas Corpus. However, contrary to a proper habeas action, a review of the initiating document reveals Plaintiff is not challenging a conviction or sentence.[1]

         Instead, Plaintiff has filed a rambling, nonsensical document in which he indicates that the “states of the union” are in conflict with the United States Constitution based upon the organization of varying and various political parties and/or forms of government at the state level. Doc. No. 1 at 2. He also states that certain portions of the Constitution conflict with certain amendments thereto. Id. at 3. Finally, Plaintiff contends certain constitutional amendments conflict with each other. Id. at 4-5. Liberally construed, Plaintiff appears to be raising constitutional violations pursuant to 42 U.S.C. § 1983.[2]

         Initially, Plaintiff neither paid a filing fee nor filed a request to proceed in forma pauperis when initiating this action. On January 8, 2019, this matter having been categorized as a habeas corpus action, the undersigned issued an Order to Petitioner to Cure Deficiency directing him to either submit an Application to Proceed In Forma Pauperis or pay the required $5 filing fee applicable to habeas corpus actions. Doc. No. 5.

         Plaintiff subsequently filed an Application for Leave to Proceed In Forma Pauperis and this Court granted the same. Doc. No. 6, 8. However, as explained above, the undersigned has determined Plaintiff's action is not a habeas action because he is not challenging a conviction or sentence. See, supra. Thus, the undersigned finds Plaintiff's request to proceed in forma pauperis was previously granted in error. An Order vacating the same is filed contemporaneously herewith. Additionally, as set forth in more detail below, Plaintiff's abusive litigation history warrants denial of Plaintiff's Application and dismissal of this lawsuit unless he pays the full $400 filing fee.

         2. 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). 28 U.S.C. § 1915.

         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.

28 U.S.C. § 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) (quotations omitted); see also Coleman v. Tollefson, __ U.S. __, 135 S.Ct. 1759, 1762 (2015) (applying the three strikes rule of § 1915(g))

         3. Analysis

         Plaintiff's litigation history is lengthy and consists of the decades-long filing of abusive and frivolous lawsuits across the nation. Seventeen years ago, the Tenth Circuit Court of Appeals noted this history and ...


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