Opinion
CIV-21-1168-D
12-22-2021
ALVIN PARKER, Plaintiff, v. SCOTT CROW, DIRECTOR OF OKLAHOMA DEPARTMENT OF CORRECTIONS, Defendant.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
Alvin Parker, a state prisoner appearing pro se, seeks relief under 42 U.S.C. § 1983, claiming violations of his right to access the courts. Doc. 1.Plaintiff requests leave to proceed in forma pauperis, that is, without prepayment of fees and costs. Doc. 3. Plaintiff has incurred three strikes under the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915(g), but he argues he should still be allowed to file in forma pauperis because he is in imminent danger of serious physical injury. Docs. 1, 3. For the following reasons, the undersigned recommends the Court deny Plaintiff's in forma pauperis motion and dismiss this action without prejudice unless Plaintiff pays the full filing fee within twenty-one days of any order adopting this report and recommendation.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
Chief United States District Judge Timothy D. DeGiusti has referred the matter to the undersigned for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 5.
See Parker v. Gosmanova, 335 Fed.Appx. 791, 796 (10th Cir. 2009) (assessing strike for frivolous appeal); Parker v. Gosmanova, 378 Fed.Appx. 816, 818 (10th Cir. 2010) (assessing one strike for post-judgment filing in district court and another strike for appeal).
I. Plaintiff's allegations.
Plaintiff's claims stem from Defendant's allegedly impeding his “right to petition the U.S. Supreme Court in [a] prior [§ 1983] lawsuit that would [have] exposed him to liability for denial of Plaintiff's right to access the U.S. Supreme Court in an earlier habeas action that would have resulted not only in Plaintiff's release from prison . . . but also the release of other similarly situated prisoners....” Doc. 1, at 9.
Plaintiff alleges he remains incarcerated despite having allegedly completed his sentence under the “1997 definition of life.” See id. at 7. The United States District Court for the Northern District of Oklahoma found Plaintiff was not entitled to habeas relief on this ground, Parker v. Allbaugh, No. 18-CV-0232-JED-FHM, 2018 WL 5260028 (N.D. Okla. Oct. 22, 2018), and the Tenth Circuit denied a certificate of appealability, Parker v. Allbaugh, No. 18-5115 (10th Cir. Jan. 16, 2019).
Plaintiff then filed a § 1983 action with this Court, alleging Defendant had failed to provide him an adequate law library to research his certiorari petition to the United States Supreme Court. Doc. 1, at 8. The United States District Court for the Western District of Oklahoma denied relief, and the Tenth Circuit affirmed. Parker v. Allbaugh, No. CIV-19-398-D, 2019 WL 6012854 (W.D. Okla. Nov. 14, 2019), aff'd, No. 19-6177, 844 Fed.Appx. 75 (10th Cir. Feb. 9, 2021) (Parker I). Plaintiff now alleges Defendant impeded his access to the Supreme Court in that case by interfering with the “release of funds from his institutional account for filing fees, ” which Plaintiff claims only became a problem when he announced that “he would voluntarily dismiss the [prior § 1983] lawsuit in exchange for his freedom.” Doc. 1, at 9-10.
Plaintiff alleges the “physical and emotional stress this sort of abuse imposed on Plaintiff was unbearable and induced a stroke in February 2021.” Id. at 10. He also alleges “severe anxiety and frequent migraine headaches triggered by deprivation of his right to access the U.S. Supreme Court, ” as well as “increasing stress to his mental health.” Id.
II. Analysis.
A. The PLRA's “three strikes” rule.
The PLRA's “three strikes rule” was “designed [by Congress] to bring [prisoner] litigation under control.” See Childs v. Miller, 713 F.3d 1262, 1265 (10th Cir. 2013) (quoting Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172, 1175 (10th Cir. 2011), abrogated on other grounds by Coleman v. Tollefson, 575 U.S. 532 (2015), and then quoting Woodford v. Ngo, 548 U.S. 81, 84 (2006)). “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 did eliminate 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).
Absent imminent physical danger, a prisoner with three strikes must “prepay the entire filing fee before federal courts may consider their civil actions and appeals.” Childs, 713 F.3d at 1265; see also Coleman, 575 U.S. at 535-36; Davis v. CoreCivic, Case No. CIV-17-902-HE, 2017 WL 9478512, at * 1 (W.D. Okla. Sept. 6, 2017), adopted, 2017 WL 4269986 (W.D. Okla. Sept. 26, 2017). A court “may raise the issue of strikes sua sponte....” Strope v. Cummings, 653 F.3d 1271, 1273 (10th Cir. 2011).
“In determining if a prisoner's allegations are sufficient to meet the imminent-danger exception, we construe his filings liberally and accept his well-pled allegations as true, and we require only that his allegations facially satisfy the threshold showing that the imminent-danger exception applies.” Boles v. Colo. Dep't of Corr., 794 Fed.Appx. 767, 770 (10th Cir. 2019) (citing Davis v. Rice, 299 Fed.Appx. 834, 835 (10th Cir. 2008), then citing Fuller v. Myers, 123 Fed.Appx. 365, 367-68 (10th Cir. 2005)).
B. Imminent danger exception.
Having accumulated these strikes, Plaintiff must now prepay the entire filing fee before this Court may consider any new action unless he establishes 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.” Id. In short, Plaintiff must plausibly allege that unless he receives a favorable outcome, he will suffer imminent harm-in other words, that there is “a nexus between the imminent danger” alleged “and the legal claims asserted.” See Lomax v. Ortiz-Marquez, 754 Fed.Appx. 756, 759 (10th Cir. 2018), aff'd, 140 S.Ct. 1721, (2020). Plaintiff does not satisfy this exception.
“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, 299 Fed.Appx. at 835 (quoting Fuller v. Wilcox, 288 Fed.Appx. 509, 511 (10th Cir. 2008)). “[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.” (internal quotation marks omitted)).
Plaintiff says Defendant's alleged interference with his certiorari petition caused anxiety and migraine headaches and induced a stroke. Doc. 1, at 10. Defendant's alleged objective “was to put Plaintiff to ‘death by incarceration, '” which he says “does constitute imminent danger of physical injury.” Id. at 9.
Generally, allegations of past misconduct do not establish imminent danger. See Barrett v. Workman, 486 Fed.Appx. 706, 708 (10th Cir. 2012) (holding 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”). The time for Plaintiff to petition for certiorari in his prior § 1983 case, Parker I, expired ninety days after the Tenth Circuit affirmed the district court's decision on February 9, 2021. 28 U.S.C. § 2101(c); Parker I, No. CIV-19398-D, 2019 WL 6012854, aff'd, No. 19-6177, 844 Fed.Appx. 75. Defendant's alleged interference with Plaintiff's past case does not amount to “imminent danger at the time he filed his complaint, ” Hafed, 635 F.3d at 1179, and so does not satisfy the imminent danger exception.
Allegations of past harm are also insufficient to establish imminent danger. Davis v. Rice, 299 Fed.Appx. at 835 (“Reliance on past injuries or harm . . . is insufficient.”). So Plaintiff's stroke, even if the result of Defendant's alleged misconduct, does not suffice.
As for Plaintiff's allegations of ongoing anxiety and migraine headaches, Plaintiff has failed to establish a nexus between those health problems and Defendant's alleged misconduct. “Determining if a sufficient nexus exists involves considering ‘whether the imminent danger of serious physical injury' alleged is ‘fairly traceable to unlawful conduct asserted in the complaint' or appeal and ‘whether a favorable judicial outcome would redress that injury.'” Boles, 794 Fed.Appx. at 771 (quoting Lomax, 754 Fed.Appx. at 759). Plaintiff does not explain how a favorable outcome, either in the form of damages or equitable relief, would resolve health problems induced by an inability to petition for certiorari in a prior case.
C. Conclusion.
With at least three strikes against him and no showing of imminent danger, Plaintiff is not eligible to proceed in forma pauperis under § 1915(g). Plaintiff's in forma pauperis motion should therefore be denied and this action dismissed without prejudice unless Plaintiff pays the full filing fee.
III. Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court deny Plaintiff's motion to proceed in forma pauperis, Doc. 3, and dismiss this action without prejudice unless Plaintiff pays the full filing fee within twenty-one days 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 this Court on or before January 12, 2022, in accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Plaintiff that failure to make a timely objection to this report and recommendation waives the right to appellate review of both factual and legal questions contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This report and recommendation disposes of all issues referred to the undersigned Magistrate Judge in this matter.