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Cochran v. Unknown Custody Staff

United States District Court, W.D. Oklahoma

April 11, 2019

LARRY COCHRAN, Plaintiff,
v.
UNKNOWN CUSTODY STAFF, et al., Defendants.

          REPORT AND RECOMMENDATION

          SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE.

         I. Background.

         Larry Cochran (Plaintiff), a federal prisoner appearing pro se, [1] seeks monetary relief under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), for pain and suffering caused by alleged interference with his medical treatment at the Federal Transfer Center (FTC) from October 29, 2018 through November 6, 2018.[2] See Doc. 7.[3] Plaintiff broadly claims in his amended complaint[4] that Defendants violated his Eighth Amendment rights by “turn[ing] off the Power to [his] Out-Let in his Cell . . . and refus[ing] to turn the Power on for [him] to use his Medically Necessary Doctor Prescribed C-Pap Breathing Machine, causing [him] a serious risk of death For eight (8) Days[.]” Id. at 3. He identifies the Defendants as: “[t]he Bulinding Patrol Officer, and Corrections Staff, working the Nights of 10/29/2018 thru 11/6/2018 . . .” Id. at 2. [5]

         United States District Judge David L. Russell has referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). See Doc. 3.

         Because Plaintiff has failed to follow court rules and orders and to submit consistent documentation in applying to proceed in forma pauperis (ifp) in this matter, the undersigned recommends the dismissal without prejudice of this action.

         II. Plaintiff's ifp applications.

         A. First application.

         Plaintiff incorporated his initial application to proceed ifp within the body of the complaint he filed while still confined at the FTC. See Doc. 1, at 3-4. He maintained he “has ‘Three Strikes [and] cannot proceed [ifp] in this matter unless he is ‘In Imminent Danger of Serious Physical Injury.'” Id. at 3. Specifically, he claimed to be “in ‘Imminent Physical Danger' of having a Heart Attack, Stroke, Hypertension Attack, and Artirial Fibrillation, due to the Defendant(s) Interference, denial and delay, of Plaintiff's use of his Doctor Prescribed C-Pap Machine (for Plaintiff's Pickwickian Syndrome, also known as Obstructive Sleep Apnea with associated Hypoxemia and sleep disruption.” Id.[6]

         The undersigned advised Plaintiff that his application was deficient and, in doing so, quoted this Court's Local Civil Rules (LCvR) prescribing an applicant's obligations when seeking leave to proceed without prepayment of filing fees.[7] See Doc. 4. Specifically, the undersigned informed Plaintiff that

as applicable here, under the court's rules and “[e]xcept as provided in LCvR3.3 or by order of the court in a specific case, the clerk of this court shall require payment of the filing fees before any civil action, suit, or proceeding is filed.” LCvR3.2. LCvR3.3, in turn, provides, in part, that
(a) An applicant who seeks leave to proceed without prepayment of the filing fees must, at the time of initiating the civil action, suit, or proceeding, submit an application to proceed in forma pauperis on forms approved by this court and supplied by the clerk upon request. Failure to use such form or to furnish the court with the equivalent information required by the form will result in the application being stricken.
(b) In the case of a prisoner, such application must also include a certificate executed by an authorized officer of the appropriate penal institution stating: (1) the amount of money or securities currently on deposit to the prisoner's credit in any institutional account; (2) the average monthly deposits to the prisoner's account for the 6-month period immediately preceding the filing of the action; and (3) the average monthly balance in the prisoner's account for the 6-month period immediately preceding the filing of the action.
(c) In the event the prisoner has been in more than one penal institution during the 6-month period immediately preceding the filing of the action, the prisoner must obtain the required certificate from the appropriate official at each institution.
(d) Pending the court's ruling on the application, the civil action, suit or proceeding will be deemed ...

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