Opinion
CIV-22-201-D
04-04-2022
GLEN FOLSOM, Plaintiff, v. POTTAWATOMIE COUNTY COURTS, et. al., Defendants.
REPORT AND RECOMMENDATION
GARY M. PURCELL UNITED STATES MAGISTRATE JUDGE
Plaintiff, a state prisoner appearing pro se, brings this action alleging violations of his rights under the United States Constitution. Doc. No. 1. United States Chief District Judge Timothy D. DeGuisti has referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). For the following reasons, the undersigned recommends this action be dismissed without prejudice unless Plaintiff pays the full filing fee within twenty-one days from the date of any order adopting this Report and Recommendation.
I. Background Information
Plaintiff initiated this lawsuit on March 10, 2022. Doc. No. 1. Though by no means a model of clarity, Plaintiff purports to assert four claims. First, Plaintiff asserts an equal protection claim based on the ruling by multiple courts that McGirt v. Oklahoma, __ U.S. __, 140 S.Ct. 2452 (2020), does not apply retroactively to convictions that were final before the Supreme Court issued the decision. Id. at 1-2. Second, Plaintiff asserts a claim, though he does not identify a specific constitutional right allegedly violated, based on allegations that while transporting him to a private prison, a deputy with a sheriff's department threatened him based on his status as a sex offender. Id. at 2. Plaintiff contends it was a violation of his rights that the deputy was not charged with a hate crime against an Indian. Id. Third, Plaintiff complains this Court is not acting expeditiously in a lawsuit he filed over one year ago, though he does not identify the lawsuit. Id. at 3. Finally, Plaintiff complains that his facility's procedure for filing documents with this Court and/or accessing the law library is not electronic, rather than having to utilize paper. Id.
On March 11, 2022, this Court entered an Order directing Plaintiff to either pay the filing fee or submit a completed request for leave of court to proceed in forma pauperis. Doc. No. 6. In response, Plaintiff submitted a Motion indicating that he has been hindered by prison officials from submitting a request to proceed in forma pauperis. Doc. No. 8. As explained below, the Court can alleviate that problem for Plaintiff as, based on his litigation history, he is required to pay the full filing fee unless his claims indicate he is in imminent danger of physical harm. They do not.
II. Three Strikes Rule
The Prison Litigation Reform Act's (“PLRA”) “‘three strikes' provision” was “‘designed [by Congress] to bring [prisoner] litigation under control.'” Childs v. Miller, 713 F.3d 1262, 1265-66 (10th Cir. 2013) (quoting Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172, 1176 (10th Cir. 2011), abrogated on other grounds by Coleman v. Tollefson, 575 U.S. 532 (2015), and Woodford v. Ngo, 548 U.S. 81, 84 (2006)). “Under the PLRA, prisoners obtain a ‘strike' against them for purposes of future [in forma pauperis] eligibility when their ‘action or appeal 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 in forma pauperis “unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. §1915(g). A court “may raise the issue of strikes sua sponte ....” Strope v. Cummings, 653 F.3d 1271, 1273 (10th Cir. 2011).
III. Plaintiff's Strikes
Plaintiff had already acquired at least three strikes pursuant to 28 U.S.C. § 1915(g) before initiating this lawsuit on March 10, 2022. See Order, Folsom v. Knutson, No. 16-6296 (10th Cir. Aug. 4, 2017) (“[W]e deny his application to proceed IFP on appeal, find his appeal frivolous, and assess a “strike” for purposes of 28 U.S.C. § 1915(g).”); Order, Folsom v. Erwin, No. 21-895-R (W.D. Okla. Sept. 15, 2021), Doc. No. 5 at 2-3 (dismissing pursuant to 28 U.S.C. § 1915(A) based on failure to state a claim); Order, Folsom v. Whitten, No. CIV-21-783 (W.D. Okla. Nov. 30, 2021), Doc. No. 17 at 3 (“The Court [] finds that with this dismissal, Plaintiff has accumulated his third ‘strike' under [28 U.S.C.] § 1915(g).”).
IV. Imminent Danger Exception
Having accumulated at least three strikes, Plaintiff is now required to prepay the entire filing fee before this Court may consider any new action, absent a demonstration that he is “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). To satisfy this 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.” Hafed, 635 F.3d at 1179. In short, Plaintiff must plausibly allege that unless he receives a favorable outcome, he will suffer imminent harm. See, e.g., Boles v. Colo. Dep't of Corrs., 794 Fed.Appx. 767, 770 (10th Cir. 2019) (“[A]n inmate seeking the imminent danger exception must show a nexus between the imminent danger he alleges and the legal claims asserted.” (quotations and alterations omitted)). Plaintiff does not satisfy this exception.
As illustrated by the description of Plaintiff's claims asserted herein, supra, Plaintiff is not currently in fear of imminent danger. The only claim that could arguably indicate any danger is his second claim in which he states that a sheriff's deputy threatened him based on his status as a sex offender. Doc. No. 1 at 2. However, Plaintiff states this occurred during transport to a private prison. Id. Thus, Plaintiff is no longer in the deputy's proximity.
“To satisfy the imminent danger exception, a complainant must offer specific fact allegations of ongoing serious physical injury, or of a pattern of misconduct evidencing the likelihood of imminent serious physical injury.” Davis v. Rice, 299 Fed.Appx. 834, 835 (10th Cir. 2008) (quotations omitted). “[O]ffering vague or conclusory allegations[] is insufficient.” Id.; see also Boles, 794 Fed.Appx. at 770 (“Allegations in the complaint . . . of imminent danger must not be vague and utterly conclusory.” (quotations omitted)). Thus, Plaintiff's conclusory statements of imminent physical harm do not fulfill the imminent-danger requirement. See, cf., Barrett v. Workman, 486 Fed.Appx. 706, 708 (10th Cir. 2012) (holding the plaintiff's allegations of “things that have happened in the past, or that he fears will happen in the future, ” did “not fulfill the imminent-danger requirement”). Plaintiff has not alleged any specific facts showing that he is at risk of imminent physical danger. The Court thus concludes Plaintiff was not in imminent danger at the time he filed his Complaint.
With more than three strikes against him and no showing of imminent danger, Plaintiff is not eligible to proceed as in forma pauperis under 28 U.S.C. § 1915(g). Thus, the Court should dismiss this action without prejudice unless Plaintiff pays the full filing fee. Additionally, Plaintiff's Motion regarding his inability to file a request to proceed in forma pauperis should be denied as moot.
RECOMMENDATION
Based on the foregoing findings, it is recommended this action be dismissed without prejudice unless Plaintiff pays the full filing fee within twenty-one days from the date of any order adopting this Report and Recommendation. Additionally, Plaintiff's “Motion to order prison to go by 3-11-22 Court Order and not pnsh (sic) me for there (sic) refusal yet again” (Doc. No. 8) should be denied as moot.
Plaintiff is advised of the right to file an objection to this Report and Recommendation with the Clerk of this Court by April 25th , 2022, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.