Bishop v. Selcer et al

Filing 16

ORDER ADOPTING 14 REPORT AND RECOMMENDATION; mailed to Adrian DesJuan Bishop #441892, CUSHING-CCF, 3200 S Kings Hwy, Cushing, OK 74023-5337. Signed by Honorable Robin J. Cauthron on 5/20/15. (lg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ADRIAN DESJUAN BISHOP,
Plaintiff,
vs.
MRS. KARI SELCER, et al.,
Defendants.

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No. CIV-15-0019-C

ORDER ADOPTING REPORT AND RECOMMENDATION
This civil rights action brought by a prisoner, proceeding pro se, was referred to
United States Magistrate Judge Suzanne Mitchell, consistent with the provisions of 28 U.S.C.
§ 636(b)(1)(B). Judge Mitchell entered a Report and Recommendation (“R&R”) on April
15, 2015, to which Plaintiff has timely objected. The Court therefore considers the matter
de novo.
In the R&R, Judge Mitchell recommended dismissal, finding Plaintiff’s Complaint
was too vague and unintelligible to demonstrate entitlement to relief. Plaintiff’s objection
(Dkt. No. 15) continues this trend. The objection is yet another vague and unintelligible
stream of consciousness suggesting that he is somehow being wronged by prison staff.
Nothing submitted by Plaintiff establishes facts on which a claim for relief can be based.
Thus, as Judge Mitchell noted in the R&R, Plaintiff’s case is subject to dismissal pursuant
to 28 U.S.C. § 1915(e)(2)(B)(ii).
This action is but one of many filed by Plaintiff. Multiple cases have been dismissed
based on Plaintiff’s failure to comply with the Court’s orders. See Bishop v. Miller, et al.,

CIV-13-784-C, dismissed for failing to provide adequate support for in forma pauperis
request; Bishop v. State of Oklahoma, CIV-13-785-R, dismissed for failing to pay filing fee
or file motion to proceed in forma pauperis; Bishop v. Miller, et al., CIV-14-560-C,
dismissed for failure to follow Court’s Order, including Order to timely serve Defendants;
Bishop v. Talley, et al., CIV-14-561-C, dismissed for failing to correct deficiencies in
Complaint, pay filing fee or file motion to proceed in forma pauperis; Bishop v. Telly, et al.,
CIV-14-763-C, dismissed on initial screening pursuant to 28 U.S.C. § 1915(e)(2) for failing
to state a claim for relief; Bishop v. A and R Population, CIV-14-975-C, dismissed on initial
screening pursuant to 28 U.S.C. § 1915A(b)(2) and §1915(e)(2)(B)(iii) based on Eleventh
Amendment immunity; and Bishop v. Oklahoma County, CIV-15-55-C, dismissed for failure
to pay filing fee or obtain leave to proceed in forma pauperis. Other cases filed by Plaintiff
are still pending: Bishop v. Jester, et al., CIV-14-678-C; Bishop v. Stewart, et al.,
CIV-14-775-C; Bishop v. State of Oklahoma, CIV-14-1002-R; Bishop v. Whetsel, et al.,
CIV-15-54-C; Bishop v. Miller, et al., CIV-15-397-C; and Bishop v. Cox, et al.,
CIV-15-421-C.1
As this list demonstrates, Plaintiff is a frequent filer. However, as this matter may
ripen into his third “strike,” that status may soon end. 28 U.S.C. § 1915(g) states:
In no event shall a prisoner bring a civil action or appeal a judgment in
a civil action or proceeding under this section if the prisoner has, on 3 or more
prior occasions, while incarcerated or detained in any facility, brought an

1

The Court notes that an R&R has been issued in this case recommending dismissal for
failure to pay the filing fee or seek leave to proceed in forma pauperis.

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action or appeal 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.
Plaintiff accrued his first “strike” in Bishop v. Telly, et al., CIV-14-763-C. In that
case, Plaintiff attempted to bring a 42 U.S.C. § 1983 action against individuals who were not
state actors. The case was dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Because
Plaintiff did not appeal this decision and the time to do so has passed, the dismissal has
ripened into a strike. See Jennings v. Natrona Cnty. Det. Ctr. Med. Facility, 175 F.3d 775,
780 (10th Cir. 1999). In Bishop v. A and R Population, CIV-14-975-C, Plaintiff received his
second “strike.” There, Plaintiff brought a 42 U.S.C. § 1983 action that the Court found was
barred by the Eleventh Amendment and, to the extent not barred, was frivolous. The case
was dismissed pursuant to 28 U.S.C. § 1915A(b)(2) and § 1915(e)(2)(B)(iii). Those portions
of the relevant statutes do not normally support assignment of a strike. However, as noted
above, the Court also found that those portions of Plaintiff’s case which were not barred by
immunity were frivolous. On that basis the Magistrate Judge recommended and the Court
adopted assignment of a strike. See Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172, 1179
(10th Cir. 2011) (noting courts should avoid a hyper-technical application of § 1915(g) which
would prevent assignment of a “strike”). Because Plaintiff did not appeal and his time to do
so has passed, that strike has ripened. See Jennings, 175 F.3d 775, 780 (10th Cir. 1999).

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As noted above, the present action is frivolous and fails to state a claim for relief.
Accordingly, the present dismissal counts as Plaintiff’s third and final “strike” pursuant to
28 U.S.C. § 1915(g).2
Accordingly, the Court adopts, in its entirety, the Report and Recommendation of the
Magistrate Judge, and for the reasons announced therein, the Complaint is dismissed without
prejudice.
IT IS SO ORDERED this 20th day of May, 2015.

2

Consistent with the Tenth Circuit precedent noted herein, this third “strike” is not ripe until
affirmed on appeal or until Plaintiff’s appeal time has expired with no appeal.

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