Opinion
CIV-22-380-HE
08-26-2022
ROBERT ANDREW WOLTER, Plaintiff, v. COUNTY OF GRADY, Defendant.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE
Robert Andrew Wolter, a federal pretrial detainee appearing pro se, seeks relief under 42 U.S.C. § 1983 and Bivens claiming Grady County, Oklahoma jail officials violated his constitutional rights by using excessive force on him and ignoring his medical needs during his brief stay at the Grady County Detention Center. See Doc. 1, at 2-4 & Ex. 1. Plaintiff requests leave to proceed in forma pauperis (IFP), that is without prepayment of fees and costs. Docs. 2, 6. 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. 4. For the following reasons, the undersigned recommends the Court deny Plaintiff's IFP motions and dismiss without prejudice this conditionally filed action unless Plaintiff pays the full filing fee within twenty-one days of any order adopting this Report and Recommendation.
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
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 in his complaint that he “has a severe medical condition that requires him to consume heavy doses of laxative medication throughout the day, during meals.” Doc. 1, Ex. 1, at 1. He alleges Grady County jail officials ignored him and then used excessive force against him when he tried to inform them of his medical condition and medication requirements before leaving the “receiving area.” Id. at 5-10, 12-13.
He further complains that, although, medical staff gave him medication for his condition, it was not until five days after his arrival that the jail doctor prescribed him a “proper dose of laxatives.” Id. at 10. This delay caused him to endure “rectal swelling, some bleeding, and a post traumatic stress disorder (PTSD) type of fear due to [his] knowledge of how he could easily be injured from his BMs if he wasn't very careful.” Id. at 11.
Plaintiff seeks compensatory and punitive damages and an injunction requiring policy changes at the jail to address the “issues” he has described in his complaint. Id. at 14.
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)). A dismissal on these grounds counts as a strike even if it is without prejudice. Day v. Maynard, 200 F.3d 665, 667 (10th Cir. 1999).
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), adopted, 2017 WL 4269986 (W.D. Okla. Sept. 26, 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 had accumulated at least five strikes under 28 U.S.C. § 1915(g) and Tenth Circuit authority before initiating this lawsuit on May 9, 2022. Those strikes include:
Wolter v. Fed. Pub. Defs. Office, No. 1:21-cv-117-CRH (D.N.D. Sept. 13, 2021) (Docket No. 12) (dismissing plaintiff's complaint in its entirety after finding the complaint was “frivolous and otherwise fails to state a claim for which relief may be granted”). See also Wolter v. Fed. Pub. Defs. Office, No. 22-1566 (10th Cir. Mar. 22, 2022) (dismissing plaintiff's appeal in Case No. 1:21-cv-00117-CRH as untimely).
Wolter v. Fed. Pub. Defs. Office, No. 1:21-cv-201-DLH-CRH, 2021 WL 6427818, at *1 (D.N.D. Dec. 15, 2021) (affirming magistrate judge's report and recommendation of dismissal of claims “mirror[ing]” those dismissed in a previous action for failure to state a claim and dismissing case with prejudice). See Childs, 713 F.3d at 1265-66 (“We conclude that the dismissal of a complaint as repetitive and an abuse of process constitutes a strike under § 1915(g), regardless of whether the district court used the words frivolous or malicious.” (internal quotation marks omitted)).
Wolter v. Lovett, No. 20-20341 (BRM) (LDW), 2022 WL 686378, at *3 (D.N.J. Mar. 8, 2022) (memorandum opinion dismissing on screening plaintiff's third amended complaint for failure to state a claim for relief).
Wolter v. Agnew, No. 22-134 (BRM) (JBC) (D.N.J. Jan. 12, 2022) (Docket No. 3) (dismissing complaint with prejudice as a “duplicate” of the second amended complaint filed in Case No. 2020341). See Childs, 713 F.3d at 1265-66.
Wolter v. Lovett, No. 2:20-cv-20372 (BRM) (CLW), 2022 WL 1308359, at *1-2 (D.N.J. May 2, 2022) (dismissing plaintiff's amended complaint on screening for failure to state a claim).
The district court granted Plaintiff leave to file a fourth amended complaint by April 7, 2022, if Plaintiff could cure the deficiencies the court had noted in its memorandum opinion. See Wolter v. Lovett, No. 20-20341 (Mar. 8, 2022 Order, Docket No. 18). Plaintiff did not timely file a fourth amended complaint and the case remains closed. See, e.g., Coleman, 575 U.S. at 537 (holding a “prior occasion[]” includes a district court's dismissal, which takes immediate effect, “notwithstanding any appeal”).
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). 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 makes no allegation, either in his IFP motions or his complaint, that he is in imminent danger at the Grady County Detention Center. At the time he filed his complaint, Plaintiff was no longer being housed at that facility. See Doc. 1, at 4. And, even if Plaintiff suffered injury while at the facility due to the defendants' conduct, 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”).
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 IFP motions (Docs. 2, 6), and dismiss this action without prejudice unless Plaintiff pays the full filing fee.
III. Recommendation and notice of right to object.
The undersigned recommends the Court deny Plaintiff's IFP motions (Docs. 2, 6), and dismiss without prejudice 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 September 16, 2022, 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.