Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Waggoner v. Byrd

United States District Court, W.D. Oklahoma

May 15, 2019

CHARLES WAGGONER, Plaintiff,
v.
MR. BYRD, et al, Defendants.

          REPORT AND RECOMMENDATION

          SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE.

         Charles Waggoner (Plaintiff), a state prisoner appearing pro se, [1] brings this action under 42 U.S.C. § 1983 claiming violations of his constitutional rights. See Doc. 1. Plaintiff requests in forma pauperis (ifp) status. See Doc. 2.[2]

         United States District Judge Robin J. Cauthron 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. 5. For the following reasons, the undersigned recommends the denial of Plaintiff's motion to proceed ifp 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.

         When prompted in his form complaint to indicate whether he had “had a case dismissed based on th[e] ‘three strikes rule, '” Plaintiff checked the “No” box. Doc. 1, at 11. Plaintiff, however, is mistaken. See Waggoner v. Hutchinson, No. CIV-14-801-C, Doc. 17, at 1 (W.D Okla. Nov. 13, 2014) (rejecting Plaintiff's contentions that “he ha[d] only two strikes and . . . is . . . in imminent danger of serious physical injury [as un]supported by either fact or law” and dismissing action)), see also Waggoner v. Rabon, CIV 11-743-C, 2011 WL 3819221 (W.D. Okla. Aug. 29, 2011) (dismissing Plaintiff's civil rights action because he failed to pay “filing fee in full”).[3]

         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.

         As noted, Plaintiff did not acknowledge his three-strikes history when prompted in his form complaint. See Doc . 1, at 11. Consistent with that failure, Plaintiff did not expressly invoke the imminent danger exception to the three strikes rule or explicitly attempt to show that the exception is met in this case. See Docs. 1, 2. Likewise, the requisite showing is not implicit from the allegations of his complaint. Doc. 1. There, Plaintiff maintains he is being illegally held beyond his release date in No. CF-2017-367, [4] Doc. 1, at 5, 7, and has been threatened by a DOC sentence administration official with “receiv[ing] a misconduct” if he “continue[d] to question any more staff concerning this same issue . . . .” Id. at 5. And, “[b]ased on the threat” from the DOC official “as well as administrative staff” at his facility, Plaintiff alleges: (1) “I am in fear for my life”; (2) “I don't know what these people will do; (3) “[t[he record is clear that they held me past my discharge date”; and (4) “[o]nce this case is made ‘public,' I fear retaliation because I have already be openly threatened.” Id. at 6. Plaintiff grounds these allegations on a letter he received from Tina Petete-DOC's Records Coordinator-in response to Plaintiff's questions about his sentence and applicable credits. See Doc. 1, at 5 & Att.1, at 6. In her response, Ms. Petete cautioned Plaintiff that “to continue to question any more staff concerning this same issue could be considered Harassment of Staff for which [he] can receive a misconduct.” Id. Att. 1, at 6. 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 only speculates but does not credibly allege that he is somehow under a threat of physical harm based on the possibility of receiving a misconduct from prison staff.

         II. Recommendation and notice of right to object.

         Plaintiff, a three-striker, has failed to sufficiently allege that he was “under imminent danger of serious bodily injury” when he initiated this action on May 10, 2019. 28 U.S.C. § 1915(g). The undersigned therefore recommends the denial of Plaintiff's motion to proceed in forma pauperis, see Doc. 2, 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 undersigned advises Plaintiff of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before June 5, 2019, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Plaintiff that failure to file a timely objection to this Report and Recommendation waives his right to appellate review of both ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.