Davis v. Upton et al

Filing 8

ORDER ADOPTING REPORT AND RECOMMENDATION of Magistrate Judge Bana Roberts and denying plaintiff's motion for leave to proceed ifp...plaintiff is directed to prepay the full $350 filing fee not later than 04/27/2012 or case will be dismisse. Signed by Honorable Joe Heaton on 04/10/2012. (lam)

THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MICHAEL ANTHONY DAVIS,
Plaintiff,
vs.
WARDEN UPTON, ET AL.,
Defendants.

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NO. CIV-12-0149-HE

ORDER
Plaintiff Michael Davis, a federal prisoner appearing pro se, brought this action
claiming violations of the Privacy Act and the denial of due process. Before the court is
plaintiff’s motion to proceed in forma pauperis. Consistent with 28 U.S.C. § 636(b)(1)(B),
this case was referred to Magistrate Judge Bana Roberts for initial proceedings. Judge
Roberts has recommended the motion be denied on the basis that plaintiff is barred from
proceeding in forma pauperis by the three-strikes rule found in 28 U.S.C. § 1915(g). She
further recommended the court dismiss the complaint if plaintiff fails to prepay the full $350
filing fee within twenty days. Plaintiff has filed a timely objection; therefore, the court
makes a de novo review of the issues to which plaintiff objects. See 28 U.S.C. § 636(b)(1).
Liberally construing Mr. Davis’s objection, he challenges the magistrate judge’s conclusion
that his prior dismissals count as “strikes” and argues that he is in imminent danger. The
court concludes plaintiff’s motion should be denied.
The Prison Litigation Reform Act of 1995 (“PLRA”) requires all prisoners bringing
a civil action to pay the full amount of the filing fee. See 28 U.S.C. § 1915(b)(1). Indigent
prisoners are ordinarily allowed to proceed with their lawsuit in forma pauperis by making

an initial partial payment and paying the balance of the filing fee in monthly installments.
See id. § 1915(b)(2). A prisoner may not, however, proceed in forma pauperis if the prisoner
has accumulated three or more “strikes” unless he is “under imminent danger of serious
physical injury.” See id. § 1915(g). A prisoner accumulates a “strike” when he files a civil
case or appeal which is dismissed as frivolous, malicious, or for failure to state a claim, and
such dismissal becomes final. See id.; Jennings v. Natrona County Detention Ctr. Med.
Facility, 175 F.3d 775, 780 (10th Cir. 1999).
In Davis v. United States, No. CIV-10-1136-HE, 2011 WL 693639 (W.D. Okla. Feb.
18, 2011), this court dismissed Mr. Davis’s claims with prejudice for failure to state a claim.
Strike one. On appeal from that decision, the Tenth Circuit denied Mr. Davis leave to
proceed in forma pauperis and dismissed his appeal because he failed to “present a reasoned,
non-frivolous argument.” Davis v. United States, 426 Fed. Appx. 648 (10th Cir. 2011)
(unpublished opinion). Strike two. See Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172,
1179 (10th Cir. 2011) (holding the denial of pauper status on appeal on the basis of
frivolousness and consequent dismissal count as a strike under PLRA). Finally, plaintiff’s
identical suit in the Northern District of Texas was dismissed for failure to state a claim or
as frivolous or malicious. Davis v. United States, No. 11-CV-064-Y, 2011 WL 2650210
(N.D. Tex. July 6, 2011). Strike three. Therefore, plaintiff may not proceed in forma
pauperis unless he is in imminent danger of serious physical injury.
In an attempt to invoke the imminent-danger exception plaintiff argues: “Mr. Davis
is in danger because if he breaks his leg that is danger, if he gets cut or has a fight that is
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danger, if the staff has to restrain him that is danger. Mr. [D]avis’s point is that he is actually
innocent of the judgment.” Plaintiff also argues that he has been in danger “for over 6-years”
because he has been unlawfully imprisoned. These are not “specific, credible allegations of
imminent danger of serious physical harm.” See Hafed, 635 F.3d at 1179-80.
The Report and Recommendation [Doc. #6] is therefore ADOPTED and plaintiff’s
motion to proceed in forma pauperis [Doc. #2] is DENIED. Plaintiff is directed to prepay
the full $350 filing fee on or before April 27, 2012, or his case will be dismissed.
IT IS SO ORDERED.
Dated this 10th day of April, 2012.

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