Berryhill v. Jones et al

Filing 10

ORDER denying 2 Motion for Leave to Proceed in forma pauperis; adopting Report and Recommendations re 7 Report and Recommendation. Filing fee to be paid in full no later than 21 days. Signed by Honorable Timothy D. DeGiusti on 4/21/2011. (mb, )

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
LAVERN BERRYHILL,
Plaintiff,
vs.

JUSTIN JONES, et al.,
Defendants.

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NO.CIV-11-307-D

ORDER
In this 42 U. S. C. § 1983 action, Plaintiff asserts constitutional violations against several
defendants, alleging they have deprived him of physical exercise and caused him severe mental
injuries during his incarceration at the Oklahoma State Reformatory. Appearing pro se, Plaintiff
seeks to proceed in forma pauperis. Pursuant to 28 U. S. C. § 636 § B(1)(B) and (C), the matter was
referred to United States Magistrate Judge Valerie K. Couch for initial consideration.
On March 28, 2011, the Magistrate Judge filed a Report and Recommendation [Doc. No. 7]
in which she recommended that the motion to proceed in forma pauperis be denied pursuant to 28
U. S. C. § 1915(g). Plaintiff timely objected to the Report and Recommendation; in his objection,
he also seeks additional time to filed an amended complaint. The matter is reviewed de novo.
As the Magistrate Judge explained in the Report and Recommendation, Plaintiff’s request
to proceed in forma pauperis is governed by 28 U. S. C. § 1915(g), which provides, in pertinent part,
that such requests must be denied where the inmate has, on three or more prior occasions during his
incarceration, brought a federal court action or appeal which was dismissed on certain grounds. The
statute 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 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.
28 U. S. C. § 1915(g). This statutory section precludes an inmate whose litigation history includes
three such prior occasions, or “strikes,” from proceeding in forma pauperis in a subsequent action.
Instead, the inmate must pay the full $350.00 filing fee to pursue the action. Jennings v. Natrona
County Detention Center Medical Facility, 175 F. 3d 775, 778 (10th Cir. 1999).
As the Magistrate Judge correctly concluded, § 1915(g) applies because Plaintiff has filed
at least three prior actions which were dismissed as frivolous or malicious or because the complaints
failed to state a claim upon which relief may be granted. See summary of Plaintiff’s litigation
history in Berryhill v. Greenway, No. CIV-10-714-D, United States District Court for the Western
District of Oklahoma, Order of August 4, 2010 [Doc. No. 12] (noting that, by 1999, Plaintiff had
filed eleven § 1983 actions, three of which had been dismissed for failure to state a claim for relief
and/or as frivolous, and that Plaintiff had thereafter continued to seek in forma pauperis status).
To avoid the restriction of the “three strikes” provision, an inmate must show that he is
“under imminent danger of serious physical injury.” 28 U. S. C. § 1915(g). As the Magistrate Judge
pointed out in the Report and Recommendation, Plaintiff has attempted to do so in this case because
he cites the phrase “imminent danger of serious physical injury.” However, he offers no factual
allegations to support that conclusory allegation.

Instead, he alleges he has been deprived of

physical exercise which he contends causes him mental injury. This conclusory allegation is
insufficient; furthermore, it does not include the “specific, credible allegations of imminent danger”
required to satisfy the exception in § 1915(g). Hafed v. Federal Bureau of Prisons, __ F. 3d. __,
2011 WL 338417, at *1 (10th Cir. Feb. 4, 2011). Accordingly, the Magistrate Judge correctly
concluded that Plaintiff does not qualify for in forma pauperis status, and his motion must be denied.
In his objection to the Report and Recommendation, Plaintiff accuses the District Judges in
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this Court of conspiring against him to prevent him from pursuing § 1983 claims by imposing upon
him the requirement that he demonstrate imminent physical danger. That accusation is without
merit; the express language of the statute imposes this restriction, and it is not the result of any
decision by the judges of this Court.

Plaintiff also argues that, by accepting his Complaint for

filing, the Clerk of this Court recognized that Plaintiff is in imminent danger; he suggests that the
Complaint would not have been filed if the Clerk had not made that determination.
Plaintiff is incorrect. The Court Clerk is not authorized to make this determination when an
inmate’s Complaint is submitted for filing. Instead, where the inmate seeks authorization to proceed
in forma pauperis, a United States Magistrate Judge must determine whether he is eligible to do so;
that determination may, as here, be reviewed by a District Judge. Plaintiff’s contention to the
contrary is without merit.
Accordingly, the Report and Recommendation [Doc. No. 7] is ADOPTED as though fully
set forth herein. Plaintiff’s Motion for Leave to Proceed In Forma Pauperis [Doc. No. 2] is
DENIED. Plaintiff is directed to pay the full filing fee of $350.00 no later than 21 days from the
date of the filing of this Order. His failure to do so will result in the dismissal of this action without
prejudice.
IT IS SO ORDERED this 21st day of April, 2011.

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