Berryhill v. Oklahoma Department of Corrections Board Members et al

Filing 11

ORDER ADOPTING REPORT AND RECOMMENDATION; the Court DENIES Berryhill's 6 Motion for Leave to Proceed in forma pauperis; ADOPTS the 7 Report and Recommendation; ORDERS Berryhill to pay the filing fee of $350.00 NLT 5/11/12; CAUTIONS Berryhill his failure to pay the filing fee in full by such date shall result in dism w/o prej. Signed by Honorable Lee R. West on 4/20/12. (ap)

IN THE UNITED STATES DISTRICT COURT FOf
THE WESTERN DISTRICT OF OKLAHOMA
LAVERN BERRYHILL,
Plaintiff,
vs.
OKLAHOMA DEPARTMENT OF
CORRECTIONS et aI.,
Defendants.

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ILI;: D
APR 2 02U12

ROBERT 0, DENNIS, CLERK
U.S, DIST.:L WESTERN DIST. OF OKLA.
BY
DEPUTY

No. CIV-12-279-W

ORDER
On March 27, 2012, United States Magistrate Judge Gary M. Purcell issued a
Report and Recommendation in this matter, and he recommended that the Motion for
Leave to Proceed in Forma Pauperis [Doc. 6] filed by plaintiff Lavern Berryhill be denied
and the matter be dismissed without prejudice unless Berryhill paid the filing fee in its
entirety within a designated time. See Doc. 7.
Berryhill was advised of his right to object, see id. at 4, and the matter now comes
before the Court on Berryhill's Objection to Magistrate's Report and Recommendation and
Affidavit. See Doc. 8.
Upon de novo review of the record, the Court concurs with Magistrate Judge
Purcell's suggested disposition of Berryhill's request to proceed without prepayment of fees
and costs. As Magistrate Judge Purcell found, Berryhill's request is governed by title 28,
section 1915(g) of the United States Code, which provides:
In no event shall a prisoner bring a civil action ... under this section if the
prisoner has, on 3 or more prior occasions, while incarcerated ... in any
facility, brought an action ... 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 section does not preclude an inmate whose litigation history
includes three or more prior occasions, or "strikes," from commencing a civil action; it only
eliminates the inmate's privilege of proceeding in forma pauperis unless the inmate can
demonstrate "imminent danger of serious physical injury."
Because Berryhill has previously filed more than three civil actions that have been
dismissed for failure to state a claim for relief and/or as frivolous,1 he is obligated to make
a credible showing that he is "under imminent danger of serious physical injury." A review
of Berryhill's complaint reveals that Berryhill has complained that he has been denied
dental care even though he has only fifteen (15) teeth and his top two front teeth are loose
and his gums are sore making it painful to chew and that he is given nothing but "beans
everyday or twice a day, brown, red and white beans mixed together." Doc. 1 at 3-4.
Berryhill has further complained in conclusory terms about the prison officials' "cruel
and unusual punishment and deliberate indifference to [his] ... serious medical needs and
[their] intentional infliction of severe emotional distress [and] pain [and] suffering." Id. at
2.

Even after construing Berryhill's allegations liberally, the Court finds that Berryhill
has failed to advance "specific, credible allegations of imminent danger of serious physical
harm[,)" Hafed v. Federal Bureau of Prisons, 635 F.3d 1172, 1179 (10th Cir. 2011), and has

1£JL, Berryhill v. Beckman, No. CIV-85-1364-E (W.O. Okla.); Berryhill v. Maynard, No. CIV­
88-1034-T (W.O. Okla.); Berryhill v. Faulk, No. CIV-92-1705-T (W.O. Okla.); Berryhill v. Poppell,
No. CIV-99-407-T (W.O. Okla. May 25, 1999); Berryhill v. Halvorson, No. CIV-08-197-0 (W.O.
Okla. April 24, 2008); Berryhillv. Miles-LaGrange, No. CIV-10-802-HE (W.O. Okla. September 30,
2010); Berryhill v. Jones, No. 11-307-0 (W.O. Okla. April 21,2011).
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further failed to "make a 'specific reference as to which of the [twelve] defendants ...
denied him ... treatment ... on what occasion.'" Id. at 1180 (quotation omitted).2
Accordingly, Berryhill has not made the requisite showing under section 1915(g) and does
not qualify for in forma pauperis status.
The Court therefore
(1) ADOPTS the Report and Recommendation [Doc. 7] issued on March 27, 2012;
(2) DENIES Berryhill's Motion for Leave to Proceed in Forma Pauperis [Doc. 6] filestamped March 20,2012;
(3) ORDERS Berryhill to pay the filing fee of $350.00 in full to the Clerk of the Court
no later than May 11,2012; and
(4) CAUTIONS Berryhill that his failure to pay the filing fee in the full amount by such
date shall result in dismissal of this matter without prejudice.
ENTERED this ~ day of April, 2012.

21n his complaint, Berryhill has alleged that in December 1990 he "requested a partial [plate]
and never received it," Doc. 1 at 3, and in 2000, he unsuccessfully initiated litigation over the denial
of dental care. ~,id.

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