Dopp v. Jones et al

Filing 13

ORDER granting in part and denying in part 12 Motion for Extension of Time to File; granting in part and denying in part 12 Motion for Reconsideration filed by Richard L Dopp. Plaintiff shall file an amended complaint in compliance with the Order of 10/10/14, within 20 days from the date of this Order. Signed by Honorable Timothy D. DeGiusti on 11/6/14. (cla)

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
Before the Court is Plaintiff’s Motion to Reconsider/Show Cause, and/or Motion for
Extension of Time [Doc. No. 12], filed pro se on October 23, 2014. The Motion seeks relief
from the Order of October 10, 2014, which conditionally granted Plaintiff leave to proceed
in forma pauperis (IFP) pursuant 28 U.S.C. § 1915 provided he files an amended complaint
that omits an improperly joined claim as to which no imminent danger of serious physical
injury exists.1
Plaintiff first asks the Court to reconsider its determination that he cannot proceed IFP
on the first claim asserted in the Complaint. “The Federal Rules of Civil Procedure do not
recognize a ‘motion to reconsider.’” Van Skiver v. United States, 952 F.2d 1241, 1243 (10th
Cir. 1991); see Warren v. American Bankers Ins., 507 F.3d 1239, 1243 (10th Cir. 2007).
However, a district court has inherent power to revise interlocutory orders at any time before

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Plaintiff is subject to filing restrictions under § 1915(g) and seeks to proceed under the statutory
exception for cases “where the prisoner is under imminent danger of serious physical injury.” See 28 U.S.C.
§ 1915(g). The Court found that Plaintiff had sufficiently made “specific, credible allegations of imminent
danger of serious physical harm” with regard to an untreated health condition to satisfy Hafed v. Federal
Bureau of Prisons, 635 F.3d 1172, 1179 (10th Cir. 2011).

the entry of a final judgment. See Warren, 507 F.3d at 1243; Riggs v. Scrivner, Inc., 927
F.2d 1146, 1148 (10th Cir. 1991). “Grounds warranting a motion to reconsider include (1) an
intervening change in the controlling law, (2) new evidence previously unavailable, and (3)
the need to correct clear error or prevent manifest injustice.” Servants of Paraclete v. Does,
204 F.3d 1005, 1012 (10th Cir. 2000) (citations omitted); see Van Skiver, 952 F.2d at 1243.
Plaintiff contends there is a split of authority, and no binding precedent, on the issue
of whether a prisoner seeking to avoid filing restrictions under the exception of § 1915(g)
“should be allowed to proceed IFP on additional claims outside of those qualifying for the
three-strikes exception.” See Motion, p.1. Plaintiff provides legal authority for the
proposition that “qualifying prisoners can file their entire complaint IFP, the exception does
not operate on a claim-by-claim basis.” Id. (citing Andrews v. Cervantes, 493 F.3d 1047,
1052 (9th Cir. 2007)). This argument misapprehends the basis of the October 10 ruling, but
the confusion is understandable in light of imprecise use of the word “claim” in the Order.
The Court did not mean to suggest a claim-by-claim analysis. The problem with
Plaintiff’s Complaint is that it improperly joins two different, unrelated lawsuits in one
pleading – a prior action first filed in 2010 against individuals allegedly responsible for a
denial of due process in a disciplinary matter, and a current action against individuals
allegedly responsible for medical care issues encountered in 2013 at his present place of
confinement. The Court stands by its conclusion that Plaintiff may not avoid the filing
restrictions of § 1915(g) by improperly joining two unrelated actions in one pleading and he
is entitled to proceed IFP only for an action that satisfies the imminent danger exception.

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See, e.g., Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011) (“Complaints like this one
[improperly joining claims and defendants] should be rejected . . . .”).
In support of reconsideration, Plaintiff also states a belief that he may have conceived
a way to join the two actions in one pleading in compliance with Rules 18 and 20, Fed. R.
Civ. P. As the Court understands Plaintiff’s argument, he proposes to link the disciplinary
conviction, which resulted in a maximum security classification, with conditions of
confinement under maximum security, which may exacerbate his medical and dental
problems. The Court’s direction to file an amended complaint was not an invitation for more
creative pleading. The October 10 Order was clear that the amended complaint to be filed
“shall omit Plaintiff’s separate and independent claim for which no imminent danger of
severe physical injury is alleged to exist.” See 10/17/14 Order [Doc. No. 11], p. 8. The
Court’s reference to a “claim” was based on the fact that the Complaint sets out two causes
of action: Count I against Defendants Jones, Blevins, Manuel, Roberts, Workman, Apala,
Crenshaw, and Morton, with supporting facts stated in pages 10-12; and Count II against
Defandants Brisolara, Bevan, Larimar, Wilkenson, and Knutson, with supporting facts stated
in pages 12-13. See Compl. [Doc. No. 1], pp.5, 10-13. There is no relationship between the
two counts, and an imminent danger of serious physical harm is alleged only as to Count II.
See id., pp. 12-13. Thus, Plaintiff is entitled to proceed IFP under the statutory exception
only with respect to the action described in Count II.
Upon review of the October 10 Order, however, the Court has found one clear error.
The Court incorrectly stated that upon compliance with the directive to amend his pleading,

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Plaintiff will be required to make partial payments until the $400.00 filing fee is paid in full.
The filing fee for a person granted IFP status under § 1915 is $350.00. See 28 U.S.C.
§ 1914(a); Judicial Conf. Sched. of Fees, Dist. Ct. Misc. Fee Sched. ¶ 14. Therefore, to this
limited extent, Plaintiff’s request for reconsideration of the October 10 Order is granted.
Plaintiff makes an alternative motion for an extension of time to file the amended
complaint required by the October 10 Order. Plaintiff requests an additional 20 days because
he was not provided a § 1983 complaint form and prison officials have refused to provide
one. Plaintiff states that he has requested a form from the Clerk’s office, and needs sufficient
time to prepare it. Upon consideration of this request, the Court finds that Plaintiff should
be granted 20 days from the date of this Order to file his amended complaint.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Reconsider/Show Cause
and/or Motion for Extension of Time [Doc. No. 12] is GRANTED in part and DENIED in
part, as set forth herein. Plaintiff shall file an amended complaint in compliance with the
Order of October 10, 2014, within 20 days from the date of this Order.
IT IS SO ORDERED this 6th day of November, 2014.

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