Washington v. Miller et al

Filing 14

OPINION AND ORDER by Judge Ronald A. White : Denying 10 Motion to Reconsideration. Plaintiff is directed to forward the $350.00 filing fee and the $50.00 administrative fee, pursuant to 28 U.S.C. 1914 and the District Court Fee Schedule, to the Court Clerk within fourteen (14) days.(acg, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
ANTHONY B. WASHINGTON,
Plaintiff,
v.
SGT. MILLER, et al.,
Defendants,

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No. CIV 18-097-RAW-SPS

OPINION AND ORDER
Plaintiff has filed a motion for reconsideration of the Court=s denial of his motion
for leave to proceed in forma pauperis (Dkts. 9, 10). Pursuant to 28 U.S.C. ' 1915(g), the
Court found Plaintiff had accumulated at least three Astrikes,@ he had not alleged he was in
imminent danger of serious physical injury at the time he filed the complaint, and there
was no evidence he was entitled to the exception in ' 1915(g) (Dkt. 9 at 2).
In his motion for reconsideration, Plaintiff claims the following instances constitute
imminent danger of serious physical harm under section 1915(g):
1).

As alleged in Plaintiff Washington=s complaint he has been assaulted
repeatedly by gang members because of he=s a non-gang member;

2).

Defendant(s) and agents of the defendants collude and participated in
lax rouge [sic], and unlawful non-security proctices [sic] that
endanger Plaintiff Washington;

3).

28 U.S.C. ' 1915(g) does not bar a prisoner from proceeding in
IN FORMA PAUPERIS if [SO] [sic] he is in imminent danger of
serious physical harm;

4).

Given the allegations at Paragraphs 7, 8, and 18-22 [of Case NO.1]
Plaintiff Washington meets the criterion to be excused of his (3)
Three Strikes bar in this instant entitled action. A Court agreed with

this argument in Cain v. Jackson, 2007 WL 2787979, *2 (S.D. Tex.
Sept. 24, 2007).
(Dkt. 10 at 2-3).
There is only one exception to the prepayment requirement in ' 1915(g),
Kinnell v. Graves, 265 F.3d 1125, 1127-28, and it applies to a prisoner who
Ais under imminent danger of serious physical injury[,]@ ' 1915(g). To meet
that exception, appellant was required to make Aspecific, credible allegations
of imminent danger of serious physical harm[.]@ Kinnell, 265 F.3d at 112728 (quotations omitted). . . . [T]he statute=s use of the present tense shows
that a prisoner must have alleged an imminent danger at the time he filed his
complaint. . . .
Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172, 1179 (10th Cir. 2011) (other citations
omitted).
A plaintiff Ashould identify at least >the general nature of the Aserious physical
injury@ he asserts is imminent.=@ Hafed, 635 F.3d at 1180 (quoting White v. Colorado, 157
F.3d 1226, 1232 (10th Cir. 1998)).
insufficient.@

A>[V]ague and utterly conclusory assertions= are

Id. (quoting White, 157 F.3d

at 1231).

A[C]redible, uncontroverted

allegations of physical threats and attacks@ would be sufficient, however. Id. (quoting
White, 157 F.3d at 1232).
Here, Plaintiff makes a general claim that gang members have assaulted him in the
past, because he is not affiliated with a gang. He further asserts the defendants have not
enforced security measures. Plaintiff, however, has presented no specificity in his claims
with respect to the individuals involved, when these incidents occurred, and how he is in
imminent danger of serious physical injury. Regarding Plaintiff=s citation to Cain, the
prisoner in that case presented specifics of his alleged imminent danger, including dates,
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names, and incidents to support his ifp motion. See id., at *1. After careful review, the
Court finds Plaintiff=s allegations are vague, conclusory, speculative, and insufficient to
meet the standard of 28 U.S.C. ' 1915(g). Furthermore, because Plaintiff has notified the
Court that he has been transferred to another facility (Dkt. 12), he will not be subject to the
circumstances present at his previous place of incarceration.
ACCORDINGLY, Plaintiff=s motion for reconsideration (Dkt. 10) is DENIED.
Plaintiff is directed to forward the $350.00 filing fee and the $50.00 administrative fee,
pursuant to 28 U.S.C. ' 1914 and the District Court Fee Schedule, to the Court Clerk within
fourteen (14) days. The agency having custody of Plaintiff is ordered to release funds
from his accounts, including Plaintiff=s trust account, for payment of the filing fee. The
Court Clerk is directed to mail a copy of this Order to the trust fund officer at Plaintiff=s
facility.
IT IS SO ORDERED this 3rd day of December 2018.

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