Klein v. Rios et al

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATION of 13 Magistrate Judge Shon Erwin...plaintiff's motion for leave to proceed in forma pauperis 2 is denied...plaintiff has until 02/22/2013 to pay $350 filing fee or this action will be dismissed without prejudice. Signed by Honorable Joe Heaton on 01/25/2013. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
QUINN AARON KLIEN,
Plaintiff,
vs.
H. A. RIOS, et al.,
Defendants.

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NO. CIV-12-1292-HE

ORDER
Plaintiff, a, a state prisoner appearing pro se, filed this § 1983 action, alleging
violations of his constitutional rights. Pursuant to 28 U.S.C. § 636(b)(1)(B), the matter was
referred to Magistrate Judge Shon T. Erwin for initial proceedings. He has recommended
that plaintiff’s request to proceed in forma pauperis be denied and that he be required to pay
the full $350.00 filing fee. The magistrate judge concluded that the three strikes provision
of 28 U.S.C. §1915(g) was applicable1 and that plaintiff had failed to demonstrate that the
statute’s imminent danger of serious physical injury exception applied.2 The court agrees
that plaintiff did not allege he is presently in danger of serious physical injury.

1

In his Report and Recommendation, the magistrate judge stated that plaintiff had not
appealed the dismissal in Klein v. Anderson, No. CIV-12-464-HE (W.D. Okla. April 26, 2012).
Plaintiff did appeal the dismissal. The Tenth Circuit dismissed plaintiff’s appeal for lack of
prosecution on October 23, 2012, and the mandate was issued the same day. However, at the time
the Report and Recommendation was issued, there was a filing error and the docket sheet did not
include the Circuit’s October 2012, order and mandate.
2

The magistrate judge included, as one of the three required strikes, a dismissal with
prejudice entered in Klein v. Gatlin, No. CIV-98-149-MB (N.D. Okla. Feb.24, 1998). Docket sheet
entry #3 reflectes that the dismissal was to be flagged as a “prior occasion.” 28 U.S.C. § 1915(g).
The court notes that a dismissal with prejudice entered in another Northern District case, Klein v.
Gatlin, No. CIV-98-150-TCK (N.D. Okla. February 24, 1998) also was flagged as a “prior
occasion.” Both ripened into strikes.

Plaintiff has objected to the Report and Recommendation. Although he challenges
the magistrate judge’s determination that he has three strikes,3 he fails to explain why that
determination is in error. The court has considered the cases the magistrate judge relies on
and concurs that plaintiff has accumulated three strikes.
Accordingly,

the

court

adopts

Magistrate

Judge

Erwin’s

Report

and

Recommendation.4 Plaintiff’s motion for leave to proceed in forma pauperis [Doc. #2] is
DENIED. Plaintiff has until February 22, 2013, to pay the $350.00 filing fee or this action
will be dismissed without prejudice.
IT IS SO ORDERED.
Dated this 25th day of January, 2013.

3

Plaintiff also makes unsubstantiated allegations that the magistrate judge is biased and
should recuse. However, adverse rulings by themselves do not demonstrate judicial bias.
4

Citing Klein v. Whetsel, No. Civ. 05-1494-T; Klein v. Victorian, No. CIV-12-565-HE; Klein
v. Keefe Inc., No. CIV-12-142-HE; Klein v. GEO, No. CIV-12-124-HE; Klein v. Lincoln County
Dist. Ct., No. CIV-05-838-T, the magistrate judge noted that plaintiff “has a pattern of and practice
of bringing civil actions in this Court, only to voluntarily dismiss them after significant time and
effort has been expended by the Court and the parties.” Report and Recommendation, p 4 n.2.

2