Opinion
Case No. CIV-20-403-R
05-07-2020
JAMES JORDANOFF, IV, Plaintiff, v. AMANDA HAEZE TROXEL, et al., Defendants.
REPORT AND RECOMMENDATION
James Jordanoff, IV (Plaintiff), a state prisoner appearing pro se, seeks relief under 42 U.S.C. § 1983 claiming violations of his constitutional rights. See Doc. 1. Plaintiff requests in forma pauperis (IFP) status. See Doc. 2. United States District Judge David L. Russell 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 the denial of Plaintiff's IFP motion 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.
This report cites court documents by their CM/ECF designation and pagination and, unless otherwise indicated, quotations are verbatim.
I. 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, instead, eliminated a three-striker's privilege of proceeding IFP "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).
A. Plaintiff's strikes.
Plaintiff had already acquired at least three strikes under 28 U.S.C. § 1915(g) and Tenth Circuit authority before filing this lawsuit. See Jordanoff v. Lester, No. CIV-15-578-R, 2015 WL 4479701, at *1-2 (W.D. Okla. July 21, 2015) (dismissing certain claims as untimely and all others for failure to state a claim for relief); Jordanoff v. Lester, Case No. CIV-15-719-R, 2015 WL 13741829, at *3 (W.D. Okla. Sept. 25, 2015) (finding complaint failed to state a claim for relief and was frivolous and recommending dismissal), adopted by 2015 WL 9478243 (W.D. Okla. Dec. 29, 2015); Jordanoff v. Turn Key Health, No. CIV-15-940-R, 2016 WL 1651874 (W.D. Okla. April 25, 2016) (dismissing complaint for failure to state a claim for relief and assessing a strike); Jordanoff v. Okla. Dep't of Corrs., No. CIV-15-947-R, 2015 WL 9308292, at *2 (W.D. Okla. Dec. 22, 2015) (dismissing complaint for failure to state a claim and assessing a strike); and Jordanoff v. Lester, CIV-15-966-R, 2016 WL 6998878, at *4 (W.D. Okla. Oct. 31, 2016) (finding complaint failed to state a claim for relief and recommending dismissal), adopted by 2016 WL 7009094 (W.D. Okla. Nov. 30, 2016).
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 461097.
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. See, e.g., Boles v. Colo. Dep't of Corr., 794 F. App'x 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." (internal quotation marks and alterations omitted)).
Plaintiff does not invoke the imminent-danger exception to the three strikes rule or explicitly attempt to show that the exception is met in this case. See Docs. 1, 2. Likewise, the requisite showing is not implicit from the allegations of his complaint. Doc. 1. There, Plaintiff complains Defendant Troxel, identified by Plaintiff as an officer at the Lexington Assessment and Reception Center, kicked him in the face, which "busted" his lips and loosened one of his teeth, on February 7, 2020. See Doc. 1, at 4, 8-9. He admits he received medical care after the incident and an investigation was conducted. See id. at 10-11. Plaintiff has since transferred to another facility. See id. at 11. Plaintiff asserts that, after his transfer to a mental health unit at the Joseph Harp Correctional Facility, officials have been slow to assist him with his various legal filings, have denied him his "indigent supplies," had placed him in a dirty cell for a several days before cleaning it, and have restricted his phone calls. See id. at 14-18. Plaintiff requests $130,000 in damages for pain and suffering and mental anguish and reinstatement of his lost privileges. See id. at 13, 31. He also seeks an injunction to "halt the abuse of mental health patients . . . at Joseph Harp Correctional Center." Id. at 19.
The Court construes Plaintiff's pro se filings liberally. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Plaintiff states he fears the medical staff may begin to over-medicate him for his psychological issues, but he admits that his current medication regimen is "thereputic" and he remains focused. See Doc. 1, at 28-29. --------
Plaintiff's allegations do not amount to "specific, credible allegations" of a present danger of physical harm as required under § 1915(g). Smith v. Veterans Admin., 636 F.3d 1306, 1309 (10th Cir. 2011) (internal quotation marks omitted). "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 F. App'x 834, 835 (10th Cir. 2008) (internal quotations and citations omitted). "Reliance on past injuries or harm, or offering vague or conclusory allegations, is insufficient." Id.; see also Boles, 794 F. App'x at 770 ("Allegations in the complaint . . . of imminent danger must not be vague and utterly conclusory." (internal quotation marks omitted)).
Plaintiff has been transferred to a new facility, rendering moot any past threat of physical injury from Defendant Troxel. Thus, Plaintiff's allegations of past abuse do not fulfill the imminent-danger requirement. Barrett v. Workman, 486 F. App'x 706, 708 (10th Cir. 2012).
Plaintiff also fails to allege facts plausibly suggesting he is in imminent danger where he is currently confined. Plaintiff only speculates but does not credibly allege that he is somehow under a threat of harm at his new facility based on the possibility of receiving too much medication from the medical staff. Plaintiff admits, however, that his current medication regimen meets his needs. See Doc. 1, at 28-29. As a result, Plaintiff similarly does not establish he was in imminent danger at the time he filed his Complaint.
C. Conclusion.
With three strikes against him and no showing of imminent danger, Plaintiff is not eligible to proceed IFP under § 1915(g). Therefore, Plaintiff's IFP motion should be denied and this action dismissed without prejudice unless Plaintiff pays the full filing fee.
II. 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 May 28, 2020, 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.
ENTERED this 7th day of May, 2020.
/s/_________
SUZANNE MITCHELL
UNITED STATES MAGISTRATE JUDGE