Opinion
CIV-22-840-R
09-23-2022
LOUIS D. CRAFT, JR., Plaintiff, v. STATE FARM INSURANCE CO., et al., Defendants.
REPORT AND RECOMMENDATION
GARY M. PURCELL, UNITED STATES MAGISTRATE JUDGE
Plaintiff, a state prisoner appearing pro se, filed the instant action pursuant to 42 U.S.C. § 1983. Doc. No. 1. Plaintiff has also filed an Application for Leave to Proceed In Forma Pauperis. Doc. No. 2. This matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the following reasons, the undersigned recommends Plaintiff's Application for Leave to Proceed In Forma Pauperis be denied and this action be dismissed without prejudice unless Plaintiff pays the filing fee in full within 21 days of any Order adopting this Report and Recommendation.
I. Background
Plaintiff is currently confined in Joseph Harp Correctional Center located in Lexington, Oklahoma. In the current action, Plaintiff asserts, inter alia, claims of insurance fraud related to his deceased mother's life insurance policy.
II. The Prison Litigation Reform Act (“PLRA”)
The PLRA's “three strikes rule” was “designed [by Congress] to bring [prisoner] litigation under control.” Childs v. Miller, 713 F.3d 1262, 1265 (10th Cir. 2013) (quotations omitted). “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 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), (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 “frequent filer” must “prepay the entire filing fee before federal courts may consider their civil actions and appeals.” Childs, 713 F.3d at 1265 (quotations omitted); see also Coleman, 575 U.S. at 53536; Davis v. CoreCivic, Case No. CIV-17-902-HE, 2017 WL 9478512, at *1 (W.D. Okla. Sept. 6, 2017), report and recommendation adopted, 2017 WL 4269986 (W.D. Okla. Sept. 26, 2017); Davis v. Martin, Case No. CIV-16-1375-HE, 2017 WL 892719, at *1 (W.D. Okla. Jan. 25, 2017), report and recommendation adopted, 2017 WL 892442 (W.D. Okla. Mar. 6, 2017). 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 has previously acquired at least three strikes prior to his current request to proceed in forma pauperis. See Craft v. Glob. Expertise in Outsourcing, No. CIV-12-1133-R, 2014 WL 4699614 (W.D. Okla. Sept. 19, 2014) (granting the defendants' motion for summary judgment for failure to exhaust), aff'd, 601 Fed.Appx. 748 (10th Cir. 2015); Craft v. Null, No. CIV-12-1052-R, 2013 WL 1007181 (W.D. Okla. Feb. 21, 2013) (recommending dismissal of some of Plaintiff's claims for failure to exhaust, as requested in the defendants' motion to dismiss, and dismissal of the rest of Plaintiff's claims for failure to state a claim upon which relief may be granted), adopted, 2013 WL 1003437 (W.D. Okla. Mar. 13, 2013), aff'd, 543 Fed.Appx. 778 (10th Cir. 2013); Craft v. Olden, No. CIV-10-375-RAW-SPS, 2012 WL 983682, at *3 (E.D. Okla. Mar. 21, 2012) (dismissing § 1983 claims for failure to exhaust administrative remedies and failure to state a claim upon which relief may be granted), aff'd, 556 Fed.Appx. 737, 738 (10th Cir. 2014) (affirming dismissal of § 1983 action for failure to exhaust administrative remedies and assessing a strike against Plaintiff under § 1915(g)). See also, cf., Report and Recommendation, Craft v. FNU LNU, No. CIV-22-567 (W.D. Okla. July 12, 2022), Doc. No. 6 (recommending denial of Plaintiff's Application for Leave to Proceed In Forma Pauperis based on Plaintiff's previous six strikes under the PLRA, following which Plaintiff voluntarily dismissed the action).
Notably, “[i]t is irrelevant under § 1915(g) whether the district court affirmatively stated in the order of dismissal that it was assessing a strike.” Smith v. Veterans Admin., 636 F.3d 1306, 1313 (10th Cir. 2011).
IV. 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[.]” Lomax v. Ortiz-Marquez, 754 Fed.Appx. 756, 759 (10th Cir. 2018) (quotations omitted).
Plaintiff does not allege imminent danger of serious physical harm, and liberally construing his Complaint, the Court finds that his claims do not evince such threat of harm. See, cf. Boles v. Colo. Dep't of Corr., 794 Fed.Appx. 767, 770 (10th Cir. 2019) (“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.” (citations omitted)).
Plaintiff claims that upon his mother's death, Defendants Stephanie and David Collins committed insurance fraud by “forging Plaintiff's name to an affidavit giving them power of attorney.” Doc. No. 1 at 2. After unsuccessfully litigating his fraud claims in state court, Plaintiff contacted Defendant State Farm Insurance Company (“State Farm”) to inform it directly of his fraud allegations. Id. at 3-5. Having received no response, Plaintiff alleges Defendant State Farm is intentionally declining to investigate his claim. Id. at 5. He asserts Defendant State Farm's refusal to investigate his claims and allowing Defendants Stephane and David Collins to collect his portion of his mother's insurance proceeds has violated his state and federal constitutional rights. Id. As a result, he seeks compensatory and punitive damages. Id. at 6.
None of these allegations indicate Plaintiff will be at risk of serious physical harm if he does not receive the requested relief. See Lomax, 754 Fed.Appx. at 759 (explaining nexus requirement). The crux of Plaintiff's claim is that the two individual Defendants fraudulently collected the life insurance payout he contends he is due, and that the underlying insurance company refused to investigate his claims of fraud. If Plaintiff does not prevail on his claims in this case, he will presumably still not receive the life insurance payout he seeks. There is no basis to conclude, however, that this lack of funds places Plaintiff at risk of serious physical harm. Accordingly, his allegations do not satisfy the imminent danger exception and his request to proceed in forma pauperis should be denied. See Davis, 299 Fed.Appx. at 835 (“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.'” (quoting Fuller v. Wilcox, 288 Fed.Appx. 509, 511 (10th Cir. 2008)); see also Boles, 794 Fed.Appx. at 770 (“Allegations in the complaint . . . of imminent danger must not be vague and utterly conclusory.” (quotations omitted)).
RECOMMENDATION
Based on the foregoing findings, it is recommended Plaintiff's Application for Leave to Proceed In Forma Pauperis (Doc. No. 2) be DENIED. The undersigned further recommends the Court dismiss this action unless Plaintiff pays the full filing fee within twenty-one days of any order adopting this Report and Recommendation.
Plaintiff is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by October 13th , 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 of America, 950 F.2d 656 (10th Cir. 1991); see, 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.