United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
M. PURCELL, UNITED STATES MAGISTRATE JUDGE
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.
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
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.
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.
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.
The Prison Litigation Reform Act
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.
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 §
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 ...