Harris v. Fox

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATION for 13 Report and Recommendation,, 8 Motion for Leave to Proceed in forma pauperis filed by Christopher Harris, 11 Motion for Leave to Proceed in forma pauperis filed by Christopher Harris. As more fully set out. Signed by Honorable David L. Russell on 6/22/16. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
CHRISTOPHER L. HARRIS,
Plaintiff,
v.
JOHN B. FOX, Warden,
Defendant.

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Case No. CIV-16-191-R

ORDER
Before the Court is the Report and Recommendation of United States Magistrate
Judge Charles B. Goodwin, entered on May 19, 2016. Doc. No. 13. Plaintiff filed an
objection to the Magistrate Judge’s conclusions in the Report and Recommendation
(“Objection”). Doc. No. 14. Pursuant to 28 U.S.C. § 636(b)(1)(B), the Court reviews the
Report and Recommendation de novo in light of Plaintiff’s objections.
In his Report and Recommendation, Judge Goodwin recommended that the Court:
1. construe Plaintiff’s lawsuit as a civil action seeking issuance of a writ pursuant to
28 U.S.C. § 1651;
2. deny the application for leave to proceed in forma pauperis (Doc. Nos. 8, 11)
3. order Plaintiff to pay the full $400.00 filing fee within 21 days of any order
adopting the Report and Recommendation, pursuant to 28 U.S.C. § 1915(g);
LCvR3.2, 3.3(c); and
4. dismiss the action without prejudice to refiling if Plaintiff fails to timely pay the
filing fee to the Clerk of this Court, or to show good cause for the failure to do so,
within 21 days of any order adopting his Report and Recommendation, pursuant to
LCvR 3.3(e).

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Doc. No. 13 at 6-7. Judge Goodwin recommended that Plaintiff’s request to proceed
in forma pauperis be denied pursuant to the “three strikes” provision of the Prison
Litigation Reform Act (“PLRA”), which provides:
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 or detained in any facility, brought an
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.
28 U.S.C. § 1915(g). Plaintiff does not dispute that the three-strike rule applies to him,
does not suggest he is in imminent danger (an exception to the rule), and even echoes
Judge Goodwin’s first two recommendations in his Objection. See Doc. No. 14, at 2.
Plaintiff does not object to items 3 and 4 of Judge Goodwin’s recommendation,
regarding the timing of the payment of filing fees. Instead, he submits his own
recommendations that Court “acknowledge Plaintiff’s payment of filing fees delivered to
the Court of Clerk May 24, 2016” or “Order the Clerk of Court to return Plaintiff’s
original payment with its Certificate of Dishonor made under the hand and seal of the
Untied [sic] States Consul or notary public or other person authorized to certify dishonor
by the law of the place where dishonor occurs stating the reasons given for such refusal.”
Id.1 For the reasons below, the Court declines to do so.

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Plaintiff’s Objection focuses on a footnote in Judge Goodwin’s Report and Recommendation discussing
the potential merits of Plaintiff’s claim. As discussed in this Order, Plaintiff did not object to Judge
Goodwin’s recommendations. The footnote is dicta, does not impact Judge Goodwin’s recommendations,
nor this Court’s adoption of the same.

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The “payment” that Plaintiff refers to appears to be an unsecured “accommodation
note” permitting Plaintiff to pay his filing fees by credit and a document that purports to
bind the Clerk of Court regarding such payment. Doc. No. 14-1. The document is not a
legally binding document and is disregarded. There is no indication that the Clerk of
Court has assented to, or has the authority to, be bound by this instrument, and the only
signature on the document is Plaintiff’s. Id. Plaintiff may not unilaterally bind the Clerk
of Court to this document by his signature alone. Likewise, Plaintiff’s unsecured note is
not an accepted form of payment and, outside of the confines of the ifp procedures
permitting partial payment of fees, the Clerk does not have the authority to extend credit
in lieu of payment of fees.
In accordance with the foregoing, the Court ADOPTS Judge Goodwin’s
recommendations. The Court:
1. construes Plaintiff’s lawsuit as a civil action seeking issuance of a writ pursuant to
28 U.S.C. § 1651;
2. denies the application for leave to proceed in forma pauperis (Doc. Nos. 8, 11)
3. orders Plaintiff to pay the full $400.00 filing fee within 21 days of this Order,
pursuant to 28 U.S.C. § 1915(g); LCvR3.2, 3.3(c); and will
4. dismiss the action without prejudice to refiling if Plaintiff fails to timely pay the
filing fee to the Clerk of this Court, or to show good cause for the failure to do so,
within 21 days of this Order, pursuant to LCvR 3.3(e), without further notice.

IT IS SO ORDERED, this 22nd day of June, 2016.

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