Opinion
CIV-24-523-R
05-31-2024
RAHEEM LA'MONZE PLATER, Plaintiff, v. D.C. COLE, et al. Defendants.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE.
Raheem La'monze Plater, 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. 2.Plaintiff has incurred more than three strikes under the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915(g), so 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.
United States District Judge David L. Russell has referred the matter to the undersigned for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 6.
See Plater v. Bowers, No. 22-789-R (W.D. Okla. June 6, 2023) (dismissed for failure to state a claim); Plater v. Phoenix Fin. Serv., No. 22-688-J (W.D. Okla. Nov. 28, 2022) (dismissed for failure to state a claim); Plater v. Walton, No. 20-1091-R (W.D. Okla. Feb. 12, 2021) (dismissed for failure to state a claim); Plater v. Hall, Case No. 21-108-WOB (E.D. Ky. Nov. 22, 2021) (order dismissing complaint for failure to state a claim).
The filing fee is $350.00. See 28 U.S.C. § 1914(a). In addition, an administrative fee of $55.00 must be paid. See Judicial Conf. Sched. of Fees, Dist. Ct. Misc. Fee Sched. ¶ 14.
I. Plaintiff's allegations.
Plaintiff first claims “Defendants violated [his] right to access the courts by knowingly and willfully obstructing Plaintiff's capacity to file a non-frivolous grievance consistent with the instant cause of action in violation of U.S. Const. Amend. I.” Doc 1, at 2-4. He alleges Defendants deprived him of his “mandated time to access the law [library] as a ‘deadliner' per official policy” on two separate occasions. Id. Plaintiff next claims “Defendants violated [his] right to equal protection of the laws in violation of the United States Constitution Amendment XIV.” Id. at 4. He alleges that on four occasions “Defendants provided access to courts to housing units 2,7,9, and RHU but not house 1 pod E cell 208 depriving the liberty interest of access to courts to Plaintiff.” 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 [in forma pauperis] 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. 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.
Plaintiff's allegations are based on discrete non-physical violations. He claims Defendants deprived him of his right to access to the law library on two occasions and violated his equal protection rights by allowing other inmates to “access [the] courts.” Supra § I.
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”). Plaintiff makes no allegation of ongoing serious physical injury or a pattern of misconduct likely to result in imminent serious physical injury.
Likewise, allegations of past harm are also insufficient to establish imminent danger. Davis, 299 Fed.Appx. at 835 (“Reliance on past injuries or harm . . . is insufficient.”). So, even if Plaintiff alleged a specific physical harm that resulted from Defendants' refusal to allow him library access, that harm would be insufficient to establish imminent danger unless it is ongoing.
Plaintiff has not satisfied the imminent danger exception.
C. Conclusion.
With more than three strikes against him and no showing of imminent danger, Plaintiff is not eligible to proceed in forma pauperis under § 1915(g). The Court should therefore deny Plaintiff's in forma pauperis motion and dismiss this action 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. 2, 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 June 21, 2024, 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.