Okpala v. Vasquez et al

Filing 76

ORDER denying without prejudice 38 Motion to Dismiss; denying without prejudice 38 Motion to Dismiss for Lack of Jurisdiction; denying without prejudice 54 Motion to Dismiss for Lack of Jurisdiction; denying without prejudice 54 Motion to Dismiss; adopting Report and Recommendations re 72 Report and Recommendations. Signed by Honorable David C. Bramlette, III on 9/13/2016 (ECW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
OKEY GARRY OKPALA
VS.

PLAINTIFF
CIVIL ACTION NO. 5:15cv40-DCB-MTP

FNU VASQUEZ, ET AL.

DEFENDANTS

ORDER ADOPTING REPORT AND RECOMMENDATION
This cause is before the Court on Magistrate Judge Michael T.
Parker’s Report and Recommendation (docket entry 72) regarding
defendant Jose A. Santana’s Motion to Dismiss (docket entry 38),
and defendants Bureau of Prisons, Warden Norbal Vazquez, Darren
Lacy, and Malcholm Edwards’ separate Motion to Dismiss or, in the
alternative for Summary Judgment (docket entry 54).
The plaintiff, Okey Garry Okpala (“Okpala”), initiated this
action on or about May 5, 2015.

In his Complaint, Okpala alleges

a violation of his constitutional rights while he was incarcerated
at various federal correctional facilities.

Title 28 U.S.C. §

1915(g) provides:
In no event shall a prisoner bring a civil action or
appeal a judgment in a civil action or proceeding under
this section if the prisoner has, on 3 or more 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 was frivolous,
malicious, or fails to state a claim upon which relief
can be granted, unless the prisoner is under imminent
danger of serious physical injury.
On September 24, 2015, the Court conditionally granted Okpala
in forma pauperis (“IFP”) status.

Although the plaintiff has

received “three strikes” under the Prison Litigation Reform Act,
the Court conditionally granted his request to proceed IFP for the
limited purpose of determining whether he meets the “imminent
danger of serious physical injury” exception under the statute.
See Amended Order of September 24, 2015.

The Court also directed

that summons issue to the defendants, and specifically directed the
defendants to address the plaintiff’s imminent danger claim, and to
provide

the

plaintiff’s

responsive pleadings.

medical

records

in

their

answers

or

See Order of September 24, 2015.

Several defendants have filed dispositive motions in this
case, and have attached the plaintiff’s medical records, but these
motions implicate jurisdictional, immunity, and/or fact issues
rather than the propriety of the plaintiff proceeding IFP.
docket entries 39 and 54.

See

Magistrate Judge Parker scheduled a

hearing on the issue of Plaintiff’s IFP status, but the hearing was
cancelled due to unforeseen issues which arose in transporting the
plaintiff.
The threshold issue in this case is whether the plaintiff may
proceed IFP.

If IFP status is denied, none of the defendants’

other grounds for dismissal need be addressed.

Magistrate Judge

Parker therefore recommends dismissal without prejudice of the
motions to dismiss.

Neither the plaintiff nor the defendants have

filed any objections to the Report and Recommendation.
The Court shall therefore deny the defendants’ motions without

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prejudice. Magistrate Judge Parker has ordered briefing of the IFP
issue, and the Court will await his Report and Recommendation
regarding same.

Accordingly,

IT IS HEREBY ORDERED that Magistrate Judge Michael T. Parker’s
Report and Recommendation (docket entry 72) is ADOPTED as the
findings and conclusions of this Court;
FURTHER ORDERED that defendant Jose A. Santana’s Motion to
Dismiss (docket entry 38), is DENIED WITHOUT PREJUDICE;
FURTHER ORDERED that defendants Bureau of Prisons, Warden
Norbal Vazquez, Darren Lacy, and Malcholm Edwards’ separate Motion
to Dismiss or, in the alternative for Summary Judgment (docket
entry 54) is DENIED WITHOUT PREJUDICE.
SO ORDERED, this the 13th day of September, 2016

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

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