Berryhill v. United States of America et al

Filing 7

ORDER ADOPTING REPORT AND RECOMMENDATION for 5 Report and Recommendation; denying Berryhill's Motion for Leave to Proceed In Forma Pauperis; Berryhill to pay the $400 filing fee to the Clerk of Court on or before 03/27/14; advises Berryhill that if filing fee is not paid in full by the designated date, this matter shall be dismissed without prejudice. Signed by Honorable Lee R. West on 03/06/14. (jy)

IN THE UNITED STATES DISTRICT COURT FOR

FILED
MAR - 6 2014

THE WESTERN DISTRICT OF OKLAHOMA
LAVERN BERRYHILL,
Plaintiff,
vs.
UNITED STATES OF AMERICA et aI.,
Defendants.

)
)
)
)
)
)

)

)

)

ROBERT D. DENNIS, CLERK
U.S. DIS~T, WESTERN DIST OF OKLA
BY
DEPUTY

No. CIV-14-91-W

ORDER
On February 10, 2014, United States Magistrate Judge Shon T. Erwin issued a
Report and Recommendation in this matter and recommended that the action be
dismissed unless plaintiff Lavern Berryhill, proceeding pro se, paid the filing fee in full by
a designated date. Berryhill was advised of his right to object, see Doc. 5 at 4, and the
matter now comes before the Court on Berryhill's Objection to Magistrate's Report and
Recommendation, see Doc. 6, and Motion for Leave to Proceed in Forma Pauperis and
supporting documentation. See Doc. 6-1.
Upon de novo review, the Court concurs with Magistrate Judge Erwin's suggested
disposition of this matter and, in the absence of allegations in Berryhill's complaint that he
"is under imminent danger of serious physical injury," 28 U.S.C. § 1915(g),1 finds that

1 Section 1915(g) is "the 'three strikes' provision of the in forma pauperis statute, as
amended by the Prison Litigation Reform Act of 1995." Jennings v. Natrona County Detention
Center Medical Facility, 175 F.3d 775, 778 (10th Cir. 1999). It provides in pertinent part:

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.

Berryhill is prevented from proceeding in forma pauperis in this matter .

.E.&., Jennings v.

Natrona County Detention Center Medical Facility, 175 F.3d 775, 778 (10 th Cir. 1999).
Accordingly, the Court
(1) ADOPTS the Report and Recommendation [Doc. 5] issued on February 10,
2014;
(2) DENIES Berryhill's Motion for Leave to Proceed In Forma Pauperis, see Doc.
6-1 ;
(3) ORDERS Berryhill to pay the filing fee of $400.00 in full to the Clerk of the Court
on or before March 27, 2014; and
(4) ADVISES Berryhill that if the filing fee is not paid in full by the designated date
that this matter shall be dismissed without prejudice.
ENTERED this

6-UL

day of March, 2014 .

28 U.S.C. § 1915(g). "'This provision requires so-called "frequent filer" prisoners to prepay the
entire filing fee before federal courts may consider their civil actions .... '" Jennings, 175 F.3d at
778 (quoting White v. Colorado, 157 F.3d 1226, 1232 (10 th Cir. 1998)).

2