Opinion
CIV-21-424-HE
05-07-2021
ANTONE LAMANDINGO KNOX, Plaintiff, v. HANBER, et al., Defendants.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Antone Lamandingo Knox, a state prisoner appearing pro se, seeks relief under 42 U.S.C. § 1983, alleging sexual assault by a prison staff member and obstruction of grievance reports about the incident. Doc. 1, at 6, 13. Plaintiff requests leave to proceed in form pauperis, that is without prepayment of fees or costs, under 28 U.S.C. § 1915. Doc. 3. United States District Judge Joe Heaton referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 6. The undersigned recommends the Court deny Plaintiff's in forma pauperis motion and dismiss without prejudice this conditionally filed action unless
The undersigned cites court documents by their CM/ECF designation and pagination and, unless otherwise indicated, quotations are verbatim.
Plaintiff pays the full filing fee within twenty-one days from the date of any order adopting this Report and Recommendation.
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 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 v. Fed. Bureau of Prisons, 635 F.3d 1172, 1176 (10th Cir. 2011) (quoting 28 U.S.C. § 1915(g)), abrogated on other grounds by Coleman v. Tollefson, 575 U.S. 532 (2015). Congress did not bar a prisoner with three strikes from filing new civil actions but, instead, eliminated 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). 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 pursuant to 28 U.S.C. § 1915(g) and Tenth Circuit authority before initiating this lawsuit on April 30, 2021. See Knox v. Ravitz, No. CIV-97-1440, Docs. 20-21 (W.D. Okla. Sept. 18, 1998) (dismissing complaint as legally frivolous); Knox v. Miles-LaGrange, No. CIV-03-413-W, Docs. 24-26 (W.D. Okla. Sept. 9, 2003) (dismissing complaint for failure to state a claim for relief); Knox v. Aldridge, 2010 WL 1904004, at *2 (E.D. Okla. May 6, 2010) (dismissing 371-page complaint as frivolous and malicious); Knox v. Bland, 2010 WL 3305048, at *1-2 (E.D. Okla. Aug. 20, 2010) (dismissing complaint as frivolous and malicious); Knox v. Aldridge, 412 Fed.Appx. 168, 171 (10th Cir. 2011) (affirming district court's assessment of a strike and assessing a second strike against Mr. Knox for the court's dismissal of his appeal); Knox v. Bland, 632 F.3d 1290, 1292 (10th Cir. 2011) (holding the district court had “properly characterized [plaintiff's claims] as frivolous” and affirming the district court's dismissal); and Knox v. Burke, 2012 WL 860398, at *1 (W.D. Okla. Mar. 13, 2012) (dismissing certain claims for lack of subject matter jurisdiction and others for failure to state a claim for relief and finding the dismissal counted as a “prior occasion” or strike). In addition, the Court has dismissed at least four of Plaintiff's cases after Plaintiff failed to pay the filing fee in full after the Court denied his in forma pauperis motion based on the three-strikes rule. See Knox v. Bowen, No. CIV-20-988-PRW, Docs. 14, 17-18 (W.D. Okla. Mar. 29, 2021) (dismissing case after Plaintiff failed to remit filing fee); Knox v. Scott, No. CIV-12-390-M, Docs. 15-17 (W.D. Okla. July 13, 2012) (same); Knox v. Hendryx, No. CIV-12-163-M, Docs. 9, 13, 16 (W.D. Okla. June 7, 2012) (same); Knox v. Morgan, No. CIV-11-1455-M, Docs. 7, 9-10 (W.D. Okla. Jan. 9, 2012) (same).
Before attributing these strikes to Plaintiff, the undersigned verified Plaintiff's identity through his Oklahoma Department of Corrections number, 191626.
B. Imminent-danger exception.
Having accumulated numerous strikes, Plaintiff is now required to prepay the entire filing fee before this Court may consider any new action, unless Plaintiff demonstrates 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 Fed.Appx. 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 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, 794 Fed.Appx. at 770 (“Allegations in the complaint . . . of imminent danger must not be vague and utterly conclusory.” (internal quotation marks omitted)).
Plaintiff alleges that he was sexually assaulted by prison staff. Doc. 1, at 6, 13. He further alleges that library staff declined to file his grievance report about the incident, among other reports. Id. However, Plaintiff does not allege, either in his in forma pauperis motion or in his complaint, that he is in imminent danger. See Hafed, 635 F.3d at 1180 (“An appellant should make his allegations of imminent danger in his motion for leave to proceed ifp.”).
Plaintiff resides at the Lawton Correctional Facility in Lawton, Oklahoma. See Doc. 1, at 9; Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (“A pro se litigant's pleadings are to be construed liberally.”). In an unrelated complaint filed on the same day as the present action, Plaintiff stated that he would be released from that facility, where the alleged assault occurred, on May 7, 2021. See Knox v. Lien, No. CIV-21-434-HE, slip op. at 5 (Okla. W.D. May 4, 2021). Any past threat of physical harm by Lawton Correction Facility officials has therefore been rendered moot. See Jordanoff v. Troxel, 2020 WL 5356656, at *2 (W.D. Okla. May 7, 2020), report and recommendation adopted, 2020 WL 2992198 (W.D. Okla. June 4, 2020).
Because Plaintiff makes no allegations of imminent danger, the Court should find the imminent-danger exception does not apply to relieve Plaintiff of his obligation to pay the filing fee. See Hafed, 635 F.3d at 1180 (finding plaintiff's “vague and conclusory” allegations of imminent harm did not “satisfy the imminent-danger exception to the three-strikes rule”).
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). Therefore, Plaintiff's in forma pauperis 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. 3, 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, 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.