United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE.
Waggoner (Plaintiff), a state prisoner appearing pro se,
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.
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.
The three-strikes rule.
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).
Plaintiff had accumulated three strikes before he initiated
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
Plaintiff's allegations do not satisfy the imminent
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.”
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,
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.
Recommendation and notice of right to object.
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
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 ...