Harper v. Bearden et al

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATION 11 of Magistrate Judge Suzanne Mitchell and denies plaintiff's motion for leave to proceed in forma pauperis 2 ...plaintiff is granted until 10/13/2014 to pay the full $400 filing fee...failure to make the required payment will result in dismissal of the action without prejudice. Signed by Honorable Joe Heaton on 08/27/2014. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
DALE HARPER,
Plaintiff,
vs.
OKLAHOMA DEPARTMENT OF
CORRECTIONS DIRECTOR, ROBERT
PATTON, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

NO. CIV-14-0563-HE

ORDER
Plaintiff Dale Harper, a state prisoner appearing pro se, filed this action pursuant to
42 U.S.C. § 1983, alleging various violations of his constitutional rights. He also sought
leave to proceed in forma pauperis. The matter was referred to Magistrate Judge Suzanne
Mitchell for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). She has
recommended that plaintiff’s application to proceed in forma pauperis be denied because
plaintiff has had three or more prior lawsuits dismissed as frivolous or malicious and more
than “three strikes” imposed. See 8 U.S.C. § 1915(g). The magistrate judge concluded
plaintiff should be required to pay the full $400 filing fee before he is allowed to proceed
further in this case because he has not alleged he faced “imminent danger of serious physical
injury” when he filed his amended complaint, as required by the Prison Litigation Reform
Act’s three strikes provision. Id.
Plaintiff has responded to the Report and Recommendation, objecting only to the
magistrate judge’s suggestion that he be required to pay the filing fee within twenty days.

Plaintiff requests that he be granted 45 days within which to pay the fee.
Accordingly, the court ADOPTS Magistrate Judge Mitchell’s Report and
Recommendation and DENIES plaintiff’s motion for leave to proceed in forma pauperis
[Doc. #2]. Plaintiff is GRANTED until Monday, October 13, 2014, to pay the full $400
filing fee. Failure to make the required payment will result in dismissal of the action without
prejudice.
IT IS SO ORDERED.
Dated this 27th day of August, 2014.

2