Okpala v. Vasquez et al

Filing 81

ORDER adopting Report and Recommendations re 77 Report and Recommendations. Signed by Honorable David C. Bramlette, III on 1/26/2017; The Plaintiff's In Forma Pauperis status is revoked pursuant to 28 U.S.C. sec. 1915(g); Final Judgment to follow. (ECW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
OKEY GARY OKPALA

PLAINTIFF

VS.

CIVIL ACTION NO. 5:15-cv-40(DCB)(MTP)

FNU VASQUEZ, Warden, Federal
Correctional Institution,
Beaumont (Low), Texas, ET AL.

DEFENDANTS

ORDER ADOPTING REPORT AND RECOMMENDATION
This

cause

is

before

the

Court

on

the

Report

and

Recommendation (docket entry 77) of Magistrate Judge Michael T.
Parker, and the plaintiff Okey Gary Okpala’s Objections thereto
(docket entry 80).

In his Report and Recommendation (“R&R”),

Magistrate Judge Parker addresses whether the plaintiff meets the
“imminent danger exception,” in light of his having accumulated
three strikes pursuant to 28 U.S.C. § 1915(g) (see Okpala v.
Lappin, No. 1:09-cv-828, 2010 WL 55997 (E.D. Tex. Jan. 5, 2010)).
Okpala was barred from proceeding in forma pauperis (“IFP”) before
the United States Supreme Court in 2007 because he had “repeatedly
abused [the] Court’s process.”

Okpala v. Drew, 549 U.S. 1201

(2007).
Okpala brings the present 42 U.S.C. § 1983 action alleging
denial of adequate medical care by various defendants from two
different prisons.
three

civil

While a prisoner, Okpala has brought at least

actions

which

have

been

dismissed

as

frivolous,

malicious, or for failing to state a claim upon which relief could

be granted.

Okpala moved to proceed IFP in this action, and

Magistrate Judge Parker granted provisional IFP status for the
limited purpose of determining if the plaintiff was in “imminent
danger” due to his medical condition. The parties have briefed the
issue, Magistrate Judge Parker has issued his R&R, and Okpala has
filed his objections thereto. The R&R finds that the plaintiff has
failed to show that he was in imminent danger of serious physical
injury

at

the

time

he

filed

his

Complaint.

The

R&R

also

recommends that the plaintiff’s IFP status be revoked pursuant to
28 U.S.C. § 1915(g), that this lawsuit be dismissed without
prejudice, and that the plaintiff be given thirty days to reopen
this civil action if the entire filing fee of $350.00 is paid.
As Magistrate Judge Parker points out in his R&R, since the
time of filing of Okpala’s Complaint, his sentence has been
completed and he is currently being detained by United States
Immigration and Customs Enforcement for deportation purposes. Such
detainees are not “prisoners” for purposes of the Prison Litigation
Reform Act (“PLRA”).
1997).

See Ojo v. INS, 106 F.3d 680, 683 (5th Cir.

Nevertheless, the issue of whether an individual is a

“prisoner” under the PLRA turns on whether the prisoner-plaintiff
was confined when his lawsuit was filed.

See, e.g., Witzke v.

Femal, 376 F.3d 744, 750 (7th Cir. 2004); Andrews v. Gunter, 2007
WL 1154108, at *4 n.3 (W.D. La. March 29, 2007); Green v. Palo
Pinto Cnty., 2013 WL 3096089, at *1 (N.D. Tex. June 20, 2013).

2

At

the time Okpala filed his Complaint, he was incarcerated pursuant
to a valid conviction and in the custody of the Federal Bureau of
Prisons.

Thus, he is considered a “prisoner” for purposes of

determining his IFP status.
The PLRA provides that a prisoner’s privilege to proceed IFP
shall

be

detention,

denied
had

if
an

he

has,

action

or

on

three

appeal

malicious, or failing to state a claim.

prior

occasions

dismissed

as

during

frivolous,

28 U.S.C. § 1915(g).

The

Court must consider all actions which were dismissed as frivolous,
malicious, or failing to state a claim, whether dismissed before or
after enactment of the PLRA.
386 (5th Cir. 1996).

Adepegba v. Hammons, 103 F.3d 383,

Denial of IFP status under the three strikes

provision is a matter of procedure.
Section 1915(g) does not affect a prisoner’s substantive
rights, and it does not block his or her access to the
courts.
A prisoner may still pursue any claim after
three qualifying dismissals, but he or she must do so
without the aid of the i.f.p. procedures ....
Prisoners who are not allowed to proceed i.f.p. may
pursue their substantive claims just as anyone else by
paying the filing fee. This requirement is neither novel
nor penal. It does not increase a prisoner’s liability,
but merely puts prisoners who abuse a privilege on the
same footing as everyone else.
Adepegba, 103 F.3d at 386-87.
Excepted from this bar are cases in which “the prisoner is
under imminent danger of serious physical injury.”
1915(g).

28 U.S.C. §

“[T]he determination as to whether a prisoner is in

‘imminent danger’ must be made as of the time that he seeks to file
3

IFP his complaint or notice of appeal.”

Choyce v. Dominguez, 160

F.3d 1068, 1070 (5th Cir. 1998).
In his Complaint, the plaintiff alleges that he was denied
adequate medical care related to his sciatica – which causes him
great pain – at various times by different defendants at Federal
Correctional

Complex

Beaumont

Low

and

at

the

Adams

County

Correctional Center. According to the plaintiff, he was in custody
at the Federal Correctional Complex Beaumont Low from 2010 to 2014
when he was diagnosed with lumbar disc problems. See Motion to
Proceed IFP (docket entry 2, p. 1).

The plaintiff was transferred

to Adams County Correctional Center in September of 2014, and he
filed his Complaint and Motion to Proceed IFP on May 11, 2015.
(Id., p. 2; Complaint, p. 6).
Okpala

also

claims

that

defendants

at

the

Adams

County

Correctional Center did not take him to a neurosurgeon even though
he was scheduled to see one at his previous prison, and did not
give him a “proactive brace” that he saw advertised on television.
(Complaint, p. 4).

Furthermore, the plaintiff alleges that he is

subject to “‘imminent danger’ [because] significant serious and
permanent disfigurement and disability to his person [will result]
...

without

...

(Complaint, p. 5).

timely

and

adequate

medical

treatment.”

In his brief on this issue, the plaintiff

alleges that his medical status is worsening and that he has to
take more pills for his condition.

4

(Plaintiff’s Brief, pp. 1-2).

The plaintiff had been transferred from Federal Correctional
Complex Beaumont Low, and was incarcerated at Adams County when he
filed his Complaint and Motion to Proceed IFP.

He filed his

Complaint approximately eight months after he was transferred. The
plaintiff was not in imminent danger of serious physical injury
from any of the defendants from the Federal Correctional Complex
Beaumont Low1 at the time his complaint was filed because he was
not at that facility at the time.

Therefore, the plaintiff should

not be allowed to proceed IFP against the Federal Correctional
Complex Beaumont Low defendants, because he could not have been in
imminent danger of serious physical injury from those Defendants at
the time his Complaint was filed.

See Summers v. Livingston, No.

1:12-CV-135, 2014 WL 1877437, at *2 (E.D. Tex. May 6, 2014)
(“Because plaintiff had been transferred ..., he was not in
imminent danger of serious harm at the time he filed this action.
Accordingly, he is barred from proceeding in forma pauperis in this
action.”).
In addition, “conclusional allegations are insufficient to
show [that a plaintiff is] under imminent danger of serious
physical injury at the time that he filed his complaint.” Smith v.
Dir., Texas Dep’t of Criminal Justice, Corr. Institutions Div., 258
F. App’x 632 (5th Cir. 2007)(citing Banos v. O’Guin, 144 F.3d 883,

1

Defendants from the Federal Correctional Complex Beaumont Low
include defendants Vazquez, Lacy, Edwards, Santana, and the Federal
Bureau of Prisons.

5

885 (5th Cir. 1998)).

“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.”

Jackson v.

United States, 2016 WL 1375591, at *2 (N.D. Tex. Apr. 7, 2016)
(general complaints about ongoing nature of alleged lack of medical
care do not meet imminent danger exception)(internal quotation
marks and citations omitted); Cain v. Shilling, No. 799-CV-898,
2001 WL 515263, *2 (W.D. Va. Mar. 14, 2001)(imminent danger not
established when prisoner alleged he did not receive the treatment
he believed necessary).
The

plaintiff’s

Correctional

Center

allegations
defendants’

regarding
alleged

the

actions

Adams
or

County

omissions

concerning his medical treatment are also insufficient to meet the
threshold
injury.2

requirement

of

imminent

danger

of

serious

physical

See Edmond v. Texas Dep’t of Corrections, 1998 WL 723877

(5th Cir. Oct. 7, 1998)(unpublished)(allegations about the quality
of medical care, including delay in medical care for fractured jaw,
found insufficient to satisfy the § 1915(g) exception); Humphrey v.
Lopez, No. 5:04-cv-94, 2004 WL 980512, at *2 (N.D. Tex. May 6,
2004)(allegations

of

delay

in

medical

care

due

to

racial

discrimination failed to establish imminent danger of serious

2

Defendants from the Adams County Correctional Center include
Stacy Cook, Marla Farmer, Neely Greene, Alisha Liddell, and
Corrections Corporation of America.

6

physical injury); Gallagher v. McGinnis, No. 00-1468, 2000 WL
739285, at *1 (E.D. La. June 5, 2000)(allegations of inadequate
medical care for excruciating pain and ambulatory difficulties
exacerbated

by

prisoner’s

work

assignments

and

the

prison

officials’ indifference to his medical needs failed to establish
imminent danger of serious physical injury).
The plaintiff merely disagrees with the defendants’ medical
treatment of him, and in a conclusory fashion surmises that he is
in imminent danger of physical bodily harm.

His disagreement with

his medical treatment does not meet the threshold of imminent
danger required to allow him to proceed IFP, and “his conclusional
allegations are insufficient to show that he was under imminent
danger of serious physical injury at the time that he filed his
complaint.”

Smith v. Dir., Texas Dep’t of Criminal Justice, Corr.

Institutions Div., 258 F. App’x 632 (5th Cir. 2007).

The record

shows that the plaintiff was being treated for his back problems by
the defendants at Adams County Correctional Center with medication
and medical appointments.

See, e.g., Plaintiff’s Medical Records

(docket entry 75-1, pp. 21, 23, 30).
Magistrate Judge Parker also points out that, while not
relevant to the issue danger of imminent bodily harm at the time
the Complaint was filed, the Adams County Correctional defendants
provided the plaintiff with further medical care after he filed his
Complaint.

The defendants had an MRI conducted on the plaintiff

7

for diagnostic purposes and had a committee review his records to
see if a neurology consultation was necessary. (docket entry 75-2,
p. 2). In addition, an appointment with a neurological surgeon was
scheduled

in

2015,

but

by

the

time

of

the

appointment,

the

plaintiff was no longer in the defendants’ custody.
In his Objections, Okpala contends that in Estelle v. Gamble,
429 U.S. 97, 104-05 (1976), the Supreme Court established that a
claim

for

serious

medical

needs

by

a

prisoner

can

be

made

regardless of “whether the indifference is manifested by prison
doctors in their response to the prisoner’s needs or by prison
guards in intentionally or delaying access to medical care or
intentionally interfering with the treatment once prescribed.”
(Objections, docket entry 80, pp. 2-3).
Nevertheless, for purposes of the § 1915(g) exception to the
bar against proceeding IFP, imminent danger of serious physical
injury is judged as of the date the complaint is filed.
O’Guin, 144 F.3d 883, 885 (5th Cir. 1988).

Banos v.

In order to meet this

requirement, the threat must be “real and proximate.”
v. Saini, 352 F.3d 328, 330 (7th Cir. 2003).

Ciarpaglini

Allegations of past

harm do not suffice; the harm must be imminent or occurring at the
time that the complaint or notice of appeal is filed, and the
exception refers to “a genuine emergency” where “time is pressing.”
Heimerman v. Litscher, 337 F.3d 781, 782 (7th Cir. 2003).
A

mere

disagreement

with

the

8

medical

staff’s

course

of

treatment is insufficient to create an imminent danger of serious
physical injury for purposes of allowing a plaintiff to proceed
IFP.

The credibility determination in this case goes not to the

merits of the plaintiff’s case but instead to the sole issue of the
plaintiff’s claim of imminent danger, a procedural matter which is
separate and independent from a determination of the merits of the
plaintiff’s underlying claims.

The plaintiff’s Complaint and

allegations fail to establish that he was under imminent danger of
serious physical injury at the time he filed his Complaint.
Choyce, 160 F.3d at 1070. Therefore, the imminent danger exception
does not apply to this civil action.
The Court therefore adopts Magistrate Judge Parker’s Report
and Recommendation.
Accordingly,
IT IS HEREBY ORDERED that the plaintiff’s Objections (docket
entry 80) are overruled, and the Report and Recommendation (docket
entry 77) of Magistrate Judge Michael T. Parker is adopted as the
findings and conclusions of this Court;
FURTHER ORDERED that the plaintiff’s In Forma Pauperis status
is revoked pursuant to 28 U.S.C. § 1915(g);
FURTHER ORDERED that a Final Judgment shall follow, dismissing
this lawsuit WITH PREJUDICE as to the refiling of another In Forma
Pauperis lawsuit raising the same claims as herein presented, but
WITHOUT PREJUDICE as to the refiling of this lawsuit without
9

seeking In Forma Pauperis status, and upon payment of the statutory
$350.00 filing fee;
FURTHER ORDERED that should the plaintiff pay the full filing
fee within thirty (30) days after the date of entry of Final
Judgment in this case, he shall be allowed to proceed in the
lawsuit as though the full fee had been paid from the outset;
FINALLY, IT IS FURTHER ORDERED that any and all motions which
may be pending in this action are hereby DENIED.
SO ORDERED, this the 26th day of January, 2017.

/s/ David C. Bramlette
UNITED STATES DISTRICT JUDGE

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