Dopp v. Jones et al

Filing 11

ORDER granting 2 Motion for Leave to Proceed in forma pauperis and granting 6 Motion for Leave to Proceed in forma pauperis provided Plaintiff files an Amended Complaint within 20 days; the Court does not adopt 7 Report and Recommendation.; granting 9 Motion to Supplement. Signed by Honorable Timothy D. DeGiusti on 10/10/2014. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

RICHARD LYNN DOPP,
Plaintiff,
v.
JUSTIN JONES, et al.,
Defendants.

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Case No. CIV-14-961-D

ORDER
This matter is before the Court for review of the Report and Recommendation issued
by United States Magistrate Judge Shon T. Erwin on September 19, 2014 [Doc. No. 7].
Judge Erwin recommends that Plaintiff’s motion to proceed in forma pauperis pursuant to
28 U.S.C. § 1915 be denied and that this action be dismissed without prejudice unless
Plaintiff pays the $400 filing fee in full within 20 days of an order adopting the
recommendation. Judge Erwin finds that Plaintiff is subject to filing restrictions under
§ 1915(g) and the allegations of his Complaint are insufficient to satisfy the statutory
exception for cases “where the prisoner is under imminent danger of serious physical injury.”
See 28 U.S.C. § 1915(g). Plaintiff, who appears pro se, has filed a timely objection. Thus,
the Court must make a de novo determination of portions of the Report to which a specific
objection is made, and may accept, modify, or reject the recommended decision. See 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).

As a preliminary matter, the Court notes a filing made contemporaneously with the
objection entitled, “Combined Motion to Supplement, and Supplement to Brief-Show Cause,
and Other Requested Relief” [Doc. No. 9]. It appears that Plaintiff is asking to supplement
a prior brief that was submitted with his Complaint and was intended, in part, to show that
he qualifies for the § 1915(g) exception. Plaintiff seeks to add recent grievance papers
reflecting his unsuccessful efforts to obtain medical records to support allegations regarding
a health problem involving his neck, and other documents that he believes are pertinent.
Plaintiff also seeks to add legal arguments to support his assertion that § 1915(g) is
unconstitutional. Although it is unclear whether the additional materials will affect a
determination of the issues presented for decision, the Court is willing to include them in the
record and consider them. Therefore, Plaintiff’s Motion to Supplement is granted.
Turning to consideration of Plaintiff’s objection, which is liberally construed due to
his pro se status, the Court finds that Plaintiff’s only objection to Judge Erwin’s Report
challenges the finding that “the Complaint reveals nothing that would demonstrate that the
imminent danger of serious physical injury exception applies.” See Report at 2. Review of
all other issues addressed by Judge Erwin is waived. See Moore v. United States, 950 F.2d
656, 659 (10th Cir. 1991); see also United States v. 2121 East 30th Street, 73 F.3d 1057,
1060 (10th Cir. 1996).1

1

To the extent Plaintiff intended his objection to include arguments in his Motion to Supplement
that § 1915(g) is unconstitutional because it violates his First Amendment rights, this Court is bound by Tenth
Circuit precedent finding the statute to be constitutional. See Whi te v. State of Colorado, 157 F.3d 1226,
1233-35 (10th Cir. 1998) (finding § 1915(g) does not violate the First Amendment); see also Kinnell v.
Graves, 265 F.3d 1125, 1128 (10th Cir. 2001) (finding First Amendment challenge foreclosed by White).

2

To satisfy the imminent-danger exception of § 1915(g), an inmate is “required to make
‘specific, credible allegations of imminent danger’ of serious physical harm.’” See Hafed v.
Federal Bureau of Prisons, 635 F.3d 1172, 1179 (10th Cir. 2011) (quoting Kinnell v. Graves,
265 F.3d 1125, 1128 (10th Cir. 2001)). “Every circuit to have decided the issue so far has
concluded that the statute’s use of the present tense shows that a prisoner must have alleged
an imminent danger at the time he filed his complaint.” Id. (citing cases). To meet the
requirement, an inmate may not rely on vague or conclusory allegations, but must specify the
facts on which the threat of imminent danger is based. Id. at 1180. The inmate “should
identify at least ‘the general nature of the “serious physical injury” he asserts is imminent.’”
Id. (quoting White v. Colorado, 157 F.3d 1226, 1232 (10th Cir. 1998)). In making a
determination, a court should consider the inmate’s allegations “in his motion for leave to
proceed ifp” and supporting papers, id.; courts may “look to the complaint, which we
construe liberally and the allegations of which we must accept as true.” See Davis v. Rice,
299 F. App’x 834, 835 (10th Cir. 2008) (internal quotation omitted); see also Stine v. U.S.
Fed. Bureau of Prisons, 495 F. App’x 790, 793 (10th Cir. 2012).
Plaintiff asserts that Judge Erwin must not have read all of the materials submitted
with his Complaint, which included a supporting brief with exhibits and Plaintiff’s
declaration.2 Otherwise, Plaintiff believes that his factual allegations regarding the severity
of his untreated medical and dental problems would have led Judge Erwin to conclude that

2

Due to a clerical error, the declaration was not attached to the Complaint originally but was added
on September 22, 2014, when the filing error was recognized and corrected.

3

he has satisfied the requirements of the statutory exception.

In particular, Plaintiff

emphasizes the severity of a spinal condition that causes headaches and pain; Plaintiff alleges
“the medications provided by [Davis Correctional Facility] do not alleviate the unbearable
pain and suffering of daily neck and headaches, and that said pain has progressed to [the]
point of feeling like [Plaintiff’s] brain is being slowly ripped from brain stem - spinal cord.”
See Pl.’s Objection [Doc. No. 10] at 3 (citing Compl. [Doc. No. 1], pp. 12-13; Pl.’s Brief
[Doc. No. 1-1], pp. 4-5; Ex. A to Brief [Doc. No. 1-2], Decl. ¶¶ 2-5).3
The Complaint asserts two claims related to Plaintiff’s confinement by the Oklahoma
Department of Corrections (“DOC”). In his first claim, Plaintiff names a former DOC
director, other DOC administrators, a former warden and employees of facilities where he
was previously confined, and alleges a denial of due process arising from a disciplinary
conviction of misconduct related to Plaintiff’s release from the Lawton Correctional Facility
in October, 2009, and placement at the Oklahoma State Penitentiary upon his return to
custody in November, 2009. In his second claim, Plaintiff names two dentists, a health
services administrator, and the warden of Davis Correctional Facility, and alleges a lack of
treatment for his dental and medical problems beginning in July, 2013.4 There is no apparent

3

Plaintiff mentions his dental complaint only in a footnote, reminding the Court of a previous case
involving a diagnosis of periodontal disease. See Pl.’s Objection [Doc. No. 10] at 3, n.3. A review of the
Complaint, supporting brief, and Plaintiff’s declaration do not reveal any specific facts regarding a current
dental problem involving imminent danger of serious injury. Thus the Court, like Plaintiff, will focus on his
medical condition.
4

Plaintiff also names in each count a DOC employee who served as the director’s designee as part
of the administrative review process for inmate grievances. Neither of these employees is alleged to have any
personal involvement in the underlying claims, and Plaintiff has no apparent claim against them. “The denial
(continued...)

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relationship between these two claims. As pertinent to Plaintiff’s claim of imminent danger
of serious injury, the Complaint and supporting briefs address only Plaintiff’s health
conditions.
Plaintiff acknowledges that his complaints of headaches and severe pain in this case
are similar to complaints he has made in prior cases in which he was denied in forma
pauperis status. He asserts that this case is different, however, because he now has obtained
a medical diagnosis regarding his pain complaints that was obtained through diagnostic tests,
which included “a CT scan on 11-26-13 and MRI on 3-12-14.” See Compl. [Doc. No. 1],
p. 13. Also, Plaintiff makes specific allegations of what treatment has been denied, and the
effect of the denial. See Hafed, 635 F.3d at 1180 (recommending “a specific reference as to
which of the defendants may have denied him what medication or treatment for what
ailment”) (internal quotation omitted). According to the Complaint and supporting papers,
as well as the supplemental materials, a bone in Plaintiff’s neck has a protrusion that is
rubbing against his spinal cord, and the condition requires surgical treatment by a
neurosurgeon. Plaintiff allegedly was promised an appointment with a surgeon that was first
scheduled for May, 2014, and later rescheduled to occur by August, 2014, but to date he has
received only another promise of an appointment at OU Medical Center. Plaintiff alleges
that the delay causes him to suffer severe and constant pain, and may result in permanent

4

(...continued)
of a grievance, by itself without any connection to the violation of constitutional rights alleged by plaintiff,
does not establish personal participation under § 1983.” Stewart v. Beach, 701 F.3d 1322, 1328 (10th Cir.
2012) (internal quotation omitted).

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nerve damage or even paralysis. See id. In light of these specific allegations, which must
be accepted as true, the Court finds that Plaintiff has sufficiently alleged an imminent danger
of serious injury based on a severe medical condition that remains untreated. Regardless of
Plaintiff’s history of meritless filings, “the standard for assessing allegations of ‘imminent
danger’ does not necessarily depend on the past conduct of the prisoner.” See Stine, 465 F.
App’x at 793. Because Plaintiff’s allegations are facially sufficient, he will be provisionally
granted leave to proceed under § 1915(g). See id. 794 n.4 (granting in forma pauperis status
based on inmate’s allegations “does not necessarily end the duty (or ability) of the district
court to test the pro se plaintiff’s allegations of ‘imminent danger’ through PLRA’s screening
provisions;” facially plausible allegations are subject to challenge).
The Court reaches a different conclusion concerning Plaintiff’s ability to proceed
under § 1915(g) on the first claim asserted in the Complaint. By joining two entirely separate
claims in one pleading, Plaintiff has failed to comply with Rules 18 and 20, Fed. R. Civ. P.,
regarding joinder of claims and parties.5

The Court notes that Plaintiff has repeatedly

brought his first claim, or a similar one, in numerous prior cases that have been dismissed
without prejudice. See Dopp v. Jones, Case No. CIV-10-1198-D, Compl. (W.D. Okla.
Nov. 4, 2010) (voluntarily dismissed after magistrate judge found plaintiff subject to
§ 1915(g)); Dopp v. Jones, Case No. CIV-11-306-D, Compl. (W.D. Okla. March 11,
5

Rule 18(a) only allows a party to join “as independent or alternate claims, as many claims as it has
against an opposing party.” Rule 20 only allows the joinder of several defendants if the claims “aris[e] out
of the same transaction, occurrence, or series of transactions or occurrences,” and there is a “question of law
or fact common to all defendants.” While joinder is encouraged for purposes of judicial economy, the federal
rules do not contemplate the joinder of “different action[s] against different parties” that present “entirely
different factual and legal issues.” Trail Realty, Inc. v. Beckett, 462 F.2d 396, 400 (10th Cir. 1972).

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2011) (dismissed for failure to pay filing fee); Dopp v. Jones, Case No. CIV-11-1495-D,
Compl. (W.D. Okla. Dec. 21, 2011) (filing fee paid; dismissed under Rule 41(b) for failure
to file a pleading that satisfied Rule 8(a)); Dopp v. Jones, Case No. CIV-12-703-D, Pet.
(W.D. Okla. June 21, 2012) (§ 2241 habeas action; dismissed for lack of a habeas remedy),
aff’d, No. 14-6025 (10th Cir. April 16, 2014); Dopp v. Patton, Case No. CIV-14-453-D
(W.D. Okla. May 2, 2014) (same). Plaintiff should not be allowed to avoid the filing
restrictions of § 1915(g) by improperly joining in this action an unrelated claim that does not
satisfy the imminent danger exception.
Other courts have reached this same conclusion in prisoner cases subject to the Prison
Litigation Reform Act (“PLRA”). “Requiring adherence in prisoner suits to the federal rules
regarding joinder of parties and claims . . . prevents prisoners from ‘dodging’ the fee
obligation and ‘3-strikes’ provision of the PLRA.” Green v. Denning, No. 06-3298-SAC,
2009 WL 484457, *2 (D. Kan. Feb. 26, 2009). See Muhmmad v. Stanford, 2012 WL
112199, *2 (W.D. Va. Jan. 12, 2012) (“To allow Muhammad to essentially package many
lawsuits into one complaint would undercut the PLRA’s three-strikes provision and its filing
fee requirement.”); Muehl v. Thurmer, No. 09-cv-16-bbc, 2009 WL 249978, *2 (W.D. Wis.
Feb. 2, 2009) (requiring prisoner to choose which of several lawsuits combined in one
complaint he would pursue under his approved § 1915 motion); Pruden v. SCI–Camp Hill,
No. 3:CV-07-0604, 2007 WL 1490573, *2 (M.D. Pa. May 21, 2007) (“In being permitted
to combine in one complaint several separate, independent claims, Plaintiff is able to
circumvent the filing fee requirements of the PLRA.”); see also George v. Smith, 507 F.3d

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605, 607 (7th Cir. 2007) (district court should have questioned joinder; by combining
unrelated claims against different defendants that belonged in different lawsuits, defendant
“was not only trying to save money but to dodge [the three-strikes] rule”); Patton v. Jefferson
Corr. Center, 136 F.3d 458, 464 (5th Cir.1998) (discouraging “creative joinder of actions”
by prisoners attempting to circumvent the PLRA’s three-strikes provision).
Accordingly, Plaintiff will not be authorized to proceed in forma pauperis on his
present Complaint because it improperly joins together separate claims and defendants, and
an imminent danger is alleged to exist as to only one claim. Plaintiff will instead be given
an opportunity to file an amended complaint within 20 days from the date of this Order. The
amendment authorized by the Court must comply with the federal joinder rules, and shall
omit Plaintiff’s separate and independent claim for which no imminent danger of severe
physical injury is alleged to exist. Further, the amended complaint must be complete in all
respects. It must be a new pleading that stands by itself without reference to the Complaint,
briefs, attachments, or supplements already filed. If Plaintiff fails to timely file an amended
complaint, or files an amended complaint that improperly joins disparate claims, the entire
action may be dismissed without prejudice.
Therefore, upon de novo review of the issues, the Court declines to adopt the Report
and Recommendation. Plaintiff will be granted leave to proceed in forma pauperis pursuant
to 28 U.S.C. § 1915 based on the second claim asserted in the Complaint and allegations
showing an imminent danger of serious physical injury with regard to his medical condition,
provided he files an amended complaint that omits the first claim, which is a separate and

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distinct claim as to which no imminent danger exists. Upon filing of an amended complaint
in compliance with this Order, Plaintiff will be required to make an initial partial payment
in the amount of $4.23, which represents 20 percent of the greater of the average monthly
deposits or average monthly balance in the prisoner’s account for the six month period
immediately preceding the filing of this action, as shown by his motion. See 28 U.S.C.
§ 1915(b)(1). Further, after payment of the initial filing fee, Plaintiff will be required to
make monthly payments of 20 percent of the preceding month’s income credited to his prison
account until the $400.00 filing fee for this action is paid in full. See id. § 1915(b)(2).
Plaintiff may elect to voluntarily dismiss this action within the 20-day period for compliance
with this Order, and no payment obligation will be imposed.
IT IS THEREFORE ORDERED that the Report and Recommendation [Doc. No. 7]
is not adopted. Plaintiff’s Applications for Leave to Proceed In Forma Pauperis [Doc. Nos. 2
and 6] are GRANTED, provided that Plaintiff files an amended complaint within 20 days of
this Order, as set forth herein.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Supplement [Doc. No. 9] is
GRANTED. The materials submitted with the Motion have been considered. No additional
supplement is needed or authorized.
IT IS SO ORDERED this 10th day of October, 2014.

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