Opinion
CIV-21-577-HE
06-17-2021
EZEKIEL DAVIS, Plaintiff, v. GEO GROUP, INC., et al., Defendants.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
Ezekiel Davis, a state prisoner appearing pro se, seeks relief under 42 U.S.C. § 1983, claiming violations of his constitutional rights and deliberate indifference to his medical needs. See Doc. 1. Plaintiff requests leave to proceed in forma pauperis, that is without prepayment of fees and costs. Doc. 2. United States District Judge Joe Heaton has referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 5. For the following reasons, the undersigned recommends the denial of Plaintiff's in forma pauperis motion and the dismissal without prejudice of this conditionally filed action 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.
I. Plaintiff's allegations.
Plaintiff alleges two types of constitutional violations by prison officials at Lawton Correctional Facility. See Doc. 1. First, Plaintiff alleges repeated obstruction of Plaintiff's law library access in the face of upcoming court deadlines, a “denial of access to the court” and “retaliation for exercising [his] constitutional rights.” Id. at 13-20. Emblematic of these allegations, Plaintiff asserts a corrections officer filed a “false report alleging that [he] was behaving aggressively, ” which “set in motion a chain of events that were intended to deny [him] access to the court in violation of [the] First Amendment.” Id. at 16.
Second, Plaintiff alleges “denial of continuity of medical care” and the “endangerment of [his] health and safety, ” as well as “assault and battery/use of unnecessary force.” Id. at 20. Plaintiff asserts that upon his arrival at the Lawton Correctional Facility, he “submitted sick call slips” alerting prison officials to his “lumbar and cervical degenerative disk disease with probable spinal stenosis and radiculopathy, ” “lumbargo neuropathy, ” and “spinal stenosis, ” id. at 20, but that prison officials repeatedly failed to notify him of medical appointments and “failed to ensure [he] receive[s] medical care for [his] serious medical need, ” id. at 21-22. Relatedly, he alleges he is “not receiving any medications that helps [him] to manage the pain, ” despite alerting a prison doctor that he is suffering “stomach pain and pain in [his] kidneys” due to three years' use of Ibuprofen. Id. at 23. He alleges this lack of attention is in part retaliation for his other ongoing litigation and that one prison official “refused to help [him], and told [him] she was told to ignore [him]” after learning of his pending suit against the Lawton Correctional Facility and GEO Group Corrections, Inc. Id. at 22.
Plaintiff also alleges that upon arrival at the Lawton Correctional Facility, he was “placed in quarantine with other uninfected inmates, ” presumably referring to the COVID-19 pandemic, but that he “was never checked by any medical staff” and was told “after two days” that “the quarantine was a joke.” Id. at 21.
Plaintiff alleges several incidents of assault by prison officials. He alleges a phlebotomist “maliciously and sadistically stuck [him] with a needle and injured [his] arm causing swelling, bruising, and pain for several days.” Id. at 24. As well, Plaintiff alleges prison officials “ordered the correctional officers to apply hand and ankle restraints” and he was “attack[ed]” by a corrections officer based on false reports of aggressive behavior in the law library. Id. at 25. And in a second incident, Plaintiff alleges he was “pepper sprayed” and “dragg[ed] out of the cage, ” placed “in a choke hold” and tight handcuffs “causing injury to [his] wrist, ” and “stripped naked in front of at least two female staff” despite having refused to undress because he is “Muslim and it is against [his] religion to be naked in the presence of a female that is not [his] wife.” Id. at 26-27.
Finally, Plaintiff alleges GEO Group and Lawton Correctional Facility “are serving subpar food” and the “so-called meat is ‘not fit for human consumption' as the labels on certain meat packages say, ” “causing cancer amongst the inmate population.” Id. at 28.
II. Analysis.
The Prison Litigation Reform Act's (PLRA) “‘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 “frequent filer” must “prepay the entire filing fee before federal courts may consider their civil actions and appeals.” Childs, 713 F.3d at 1265 (internal quotation marks omitted); 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), 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).
A. Plaintiff's strikes.
Plaintiff is unquestionably a frequent filer. See CoreCivic, 2017 WL 9478512, at *1; Martin, 2017 WL 892719, at *1. Plaintiff acquired at least three strikes under 28 U.S.C. § 1915(g) before filing this case. See Davis v. Ward, Case No. CIV-05-558 (W.D. Okla. May 11, 2006) (dismissing complaint for failure to exhaust administrative remedies); Davis v. Jones, Case No. CIV-04819 (W.D. Okla. Aug. 24, 2004) (dismissing complaint for failure to state a claim); Davis v. Moles, Case No. 02-CV-110 (N.D. Okla. Feb. 8, 2002) (same).
Before attributing these strikes to this Plaintiff, the undersigned verified Plaintiff's identity through his Oklahoma Department of Corrections number. Plaintiff's DOC number is 191626.
Plaintiff also has a history of failing to pay court-ordered fees and failing to prosecute his cases. See Davis v. Martin, 697 Fed.Appx. 580 (10th Cir. 2017) (dismissing appeal for failure to prosecute); CoreCivic, Case No. CIV-17-902-HE, Doc. 10 (W.D. Okla. Oct. 23, 2017) (dismissing complaint after Plaintiff failed to pay full filing fee); Davis v. McCollum, Case No. CIV-12-295, Doc. 15 (W.D. Okla. Aug. 20, 2012) (dismissing complaint when Plaintiff failed to make his initial payment after being granted in forma pauperis status).
B. Imminent danger exception.
Having accumulated these 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.” Id. In short, Plaintiff must plausibly allege that unless he receives a favorable outcome, he will suffer imminent harm-in other words, that there exists “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 v. Rice, 299 Fed.Appx. 834, 835 (10th Cir. 2008) (internal quotations and citations omitted). “[O]ffering vague or conclusory allegations, is insufficient.” Id.; see also Boles v. Colo. Dep't of Corr., 794 Fed.Appx. 767, 770 (10th Cir. 2019). (“Allegations in the complaint . . . of imminent danger must not be vague and utterly conclusory.” (internal quotation marks omitted)).
Plaintiff's allegations of harm fall roughly into two categories: that he will continue to be in pain due to prison officials' indifference to his chronic spinal ailments and will continue to see his health deteriorate, along with that of the general prison population, due to unsafe food, Doc. 1, at 13-20, 28; and that he has suffered several incidents of assault by prison officials, id. at 2327. Plaintiff's allegations of past misconduct do not satisfy the imminent-danger exception. 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”).
Nor do his vague allegations that his health will degrade as a result of lack of medical attention or the quality of prison food. He alleges a general “denial of continuity of medical care, ” Doc. 1, at 20, so the nature of any imminent harm is at best unclear.
Plaintiff's allegations about the quality of prison food also lack specificity and credibility. He alleges only that suspect meat is “causing cancer amongst the inmate population.” Id. at 28. These allegations lack sufficient particularity to establish “imminent and serious danger” arising from Defendants' “deliberate indifference toward his serious medical needs” and denial of “adequate medical treatment.” See Boles, 794 Fed.Appx. at 770.
As for his Ibuprofen use, Plaintiff alleges that because he is “not receiving any medications that helps [him] to manage the pain, ” he is suffering from “stomach pain and pain in [his] kidneys” after “taking Ibuprofen for over three years.” Doc. 1, at 23. But this allegation establishes no “nexus between the imminent danger” alleged “and the legal claims asserted.” See Lomax, 754 Fed.Appx. at 759.
“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 (internal quotation marks omitted). With no clear nexus to alleged unlawful conduct, Plaintiff's allegations of Ibuprofen side effects do not satisfy the imminent danger requirement.
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). As a result, Plaintiff's in forma pauperis motion should be denied and this action dismissed without prejudice unless Plaintiff pays the full filing fee. III. Recommendation and notice of right to object.
The undersigned recommends the denial of Plaintiff's motion to proceed in forma pauperis, Doc. 2, and the dismissal without prejudice of this conditionally filed action unless Plaintiff pays the full filing fee within twenty-one days from the date 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 Court on or before July 8, 2021, 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 factual and legal issues contained herein. 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 the captioned matter.