Opinion
Case No. CIV-17-247-F
04-04-2017
JOHN C. DUVALL, Plaintiff, v. OKLAHOMA STATE BOARD OF OSTEOPATHIC EXAMINERS et al., Defendants.
REPORT AND RECOMMENDATION
Plaintiff John C. Duvall is a state prisoner appearing pro se in this "diversity & civil rights" action. Compl. (Doc. No. 1) at 1. United States District Judge Stephen P. Friot has referred this matter to the undersigned Magistrate Judge for initial proceedings in accordance with 28 U.S.C. § 636. For the following reasons, it is recommended that Plaintiff's Application for Leave to Proceed In Forma Pauperis ("Pl.'s IFP Appl.," Doc. No. 2) be denied and that this conditionally filed action be dismissed without prejudice unless Plaintiff pays the full $400.00 filing fee within twenty-one days from the date of any order adopting this Report and Recommendation.
I. Background
Plaintiff is a Missouri state prisoner incarcerated at James Crabtree Correctional Center ("JCCC") in Helena, Oklahoma. Compl. at 1. Plaintiff asserts federal and state-law claims against Dr. Jeffrey Troutt, an employee of the Oklahoma Department of Corrections ("ODOC"), and the Oklahoma State Board of Osteopathic Examiners ("OSBOE"). See id. at 1-2. Plaintiff claims that on August 9, 2016, and thereafter, Defendant Troutt showed deliberate indifference to Plaintiff's serious medical needs, retaliated against Plaintiff, and intentionally inflicted emotional distress against Plaintiff in the course of treating a growth in Plaintiff's trachea. See id. at 2, 3-19, 24-25. Plaintiff claims that OSBOE has negligently failed to act upon complaints regarding Defendant Troutt and has unlawfully treated complaints submitted by inmates differently from complaints submitted by noninmates. See id. at 19-23.
References to Plaintiff's filings use the page numbers assigned by the Court's CM/ECF system.
II. The Prison Litigation Reform Act
Prisoners who wish "to bring a civil action . . . without prepayment of fees or security therefor" must seek leave to proceed in forma pauperis pursuant to the Prison Litigation Reform Act ("PLRA") and are subject to the "three-strikes" rule of 28 U.S.C. § 1915(g). See 28 U.S.C. § 1915(a)(2), (g).
The three-strikes rule provides:
In no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.Id. § 1915(g). In the absence of imminent physical danger, this statutory provision "requires so-called 'frequent filer' prisoners to prepay the entire filing fee before federal courts may consider their civil actions and appeals." Childs v. Miller, 713 F.3d 1262, 1265 (10th Cir. 2013) (internal quotation marks omitted); see also Coleman v. Tollefson, 135 S. Ct. 1759, 1762 (2015).
III. Plaintiff's Prior Occasions
Plaintiff acknowledges he acquired three strikes prior to filing this lawsuit on March 6, 2017. See Pl.'s IFP Appl. at 5. See also R. & R., Duvall v. Troutt, No. CIV-14-1384-F (W.D. Okla.) (Doc. No. 7 (Jan. 29, 2015)) (finding three strikes based on Duvall v. Soc. Sec. Admin., No. 05-4019-CV-C-SOW (W.D. Mo.), Duvall v. Dempsey, No. 2:05-CV-73-ERW (E.D. Mo.), and Duvall v. Elder, No. 05-4330-CV-C-NKL (W.D. Mo.)), adopted in relevant part, Order (Doc. No. 9 (Mar. 11, 2015)); Duvall v. Troutt, No. CIV-16-1488-F, 2017 WL 782504, at *2 (W.D. Okla. Feb. 28, 2017) ("[T]he court agrees . . . that Mr. Duvall has three strikes . . . .").
IV. Application of 28 U .S.C. § 1915(g)
Because Plaintiff acquired at least three strikes prior to filing this lawsuit, Plaintiff is not entitled to proceed in forma pauperis absent a showing that he is "under imminent danger of serious physical injury." 28 U.S.C. § 1915(g); see Duvall, 2017 WL 782504, at *2; Smith v. Veterans Admin., 636 F.3d 1306, 1309 (10th Cir. 2011).
Plaintiff alleges that he is entitled to application of this exception. See Pl.'s IFP Appl. at 5-7. In support, Plaintiff alleges that: the obstruction in his airway is growing and he may "cho[ke] to death" or "become terminal" from untreated throat cancer; he "vomits an average of 7 times a week" and suffers pain when he "dry swallows"; and he has a "pre-cancerous lesion" on his shoulder that unidentified individuals have refused to treat. Id. at 5-7.
In Case Number CIV-16-1488-F, Plaintiff likewise alleged in support of an attempt to invoke the imminent-danger exception that his throat condition could result in choking and vomiting. R. & R. at 3-5, Duvall, No. CIV-16-1488-F (Doc. No. 10 (Jan. 23, 2017)). The magistrate judge explained the relevant law as follows:
To meet § 1915(g)'s imminent-danger exception, Plaintiff must raise "specific, credible allegations [that he is under]'imminent danger of serious physical harm.'" Hafed v. Fed. Bureau of Prison, 635 F.3d 1172, 1179 (10th Cir. 2011). "[V]ague and utterly conclusory assertions" of physical injuries are insufficient to meet the imminent-danger exception. White v. Colorado, 157 F.3d 1226, 1231 (10th Cir. 1998). Moreover, allegations of past harm are insufficient; instead, the harm "must be imminent or occurring at the time the complaint is filed." Stine v. United States Bureau of Prisons, 465 F. App'x 790, 793 (10th Cir. 2012). To fall within the exception, therefore, Plaintiff's submissions must contain "specific fact allegations of ongoing serious physical injury, or of a pattern of misconduct evidencing the likelihood of imminent serious physical injury." Fuller v. Wilcox, 288 F. App'x 509, 511 (10th Cir. 2008) (citation omitted; emphasis in original).Id. at 2-3. Accepting Plaintiff's allegations as true, the assigned magistrate judge concluded that Plaintiff's allegations "fail[ed] to demonstrate sufficiently that he is in imminent danger of serious physical injury." Id. at 4. Specifically, it was noted that "Plaintiff does not allege that he has sought or been denied medical care" for the choking or vomiting and that, despite allegations that his throat symptoms had lasted over a year, Plaintiff had "only requested medical treatment twice, in a temporally limited period of approximately two weeks in August 2016." Id. at 4-5. The district judge agreed with the magistrate judge's finding that "neither Plaintiff's allegations of imminent danger" nor those of "serious injury" were credible. Id. at 5 (internal quotation marks omitted); see Duvall, 2017 WL 782504, at *2.
The Tenth Circuit has found sufficient allegations of ongoing serious physical injury where, for example, a prisoner alleged that he was "unable to walk without a wheelchair and prison officials refused to provide him with one." Fuller, 288 F. App'x at 511. Also, a prisoner's allegations that prison officials refused to fill prescriptions for the only medication that would effectively treat his chronic stomach condition also have sufficed. See Stine, 465 F. App'x at 793.
The Court granted Plaintiff permission to submit a new request for leave to proceed in forma pauperis and offer additional support for application of the imminent-danger exception. See Duvall, 2017 WL 782504, at *2. Plaintiff instead dismissed that action and initiated the present lawsuit. --------
The undersigned finds that, although Plaintiff has now offered additional support for his allegations, he nonetheless has not remedied the deficiencies cited above and has not shown that application of § 1915(g)'s exception is warranted. The materials presented by Plaintiff reflect that other than the August 2016 administrative requests for medical treatment noted above, Plaintiff has submitted only two additional requests for medical care, in November 2016 and December 2016. See Compl. Exs. 1-7 (Doc. Nos. 1-1 to 1-7). Neither of these two later requests was labeled "emergency," and, more significantly, neither of these requests specifically mentioned either the choking or the vomiting that is allegedly life-threatening, instead asking only for treatment for the growth in his throat. See Doc. No. 1-6, at 2; Doc. No. 1-7, at 2. Plaintiff broadly alleges that he has a precancerous skin lesion on his shoulder that "they refused to even look at," but he offers no dates, no details, and no other support for his speculation that the lesion will ultimately result in terminal skin cancer. See Pl.'s IFP Appl. at 6-7; Fuller, 288 F. App'x at 511 (noting the requirement of "specific fact allegations of ongoing serious physical injury"). And Plaintiff's numerous submissions seeking punishment of Defendant Troutt, or requesting only exhaustion rather than treatment, do not credibly support the proposition that he is in imminent danger of a serious physical injury. See Doc. No. 1-2, at 2; Doc. No. 1-3, at 2, 3, 4, 5, 6; Doc. No. 5, at 2; see Hafed, 635 F.3d at 1179-80 (noting that allegations of imminent danger at the time the complaint is filed must be "credible"); White, 157 F.3d at 1232 ("Like the district court, we conclude Mr. White has failed to raise a credible allegation that he is in imminent danger of serious physical harm . . . ."); see also Vandiver v. Prison Health Servs., Inc., 727 F.3d 580, 585 (6th Cir. 2013) ("[T]he threat or prison condition must be real and proximate and the danger of serious physical injury must exist at the time the complaint is filed." (internal quotation marks omitted)).
Plaintiff thus has not shown that he is entitled to proceed in forma pauperis while prosecuting this lawsuit.
RECOMMENDATION
Based upon the foregoing findings, the undersigned recommends that the District Judge: (i) deny Plaintiff's Application for Leave to Proceed In Forma Pauperis (Doc. No. 2); (ii) order Plaintiff to pay the $400.00 filing fee owed within twenty-one days of adoption of this Report and Recommendation, see 28 U.S.C. § 1915(g); LCvR 3.3(e); and (iii) dismiss this action without prejudice to refiling if Plaintiff fails to timely pay the filing fee to the Clerk of this Court, or to show good cause for the failure to do so, within twenty-one (21) days of any order adopting this Report and Recommendation. See LCvR 3.3(e).
NOTICE OF RIGHT TO OBJECT
Plaintiff is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by April 25, 2017, in accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72. Plaintiff further is advised that failure to timely object to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. See 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 present case.
ENTERED this 4th day of April, 2017.
/s/_________
CHARLES B. GOODWIN
UNITED STATES MAGISTRATE JUDGE