Johnson v. Mitchell et al

Filing 13

ORDER denying [] Motion for Writ of Mandamus; denying [] Motion to Appoint Counsel. Signed by Honorable Timothy D. DeGiusti on 2/3/2017. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
R. WAYNE JOHNSON,
Plaintiff,
v.
SUZANNE MITCHELL, et al.,
Defendants.

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Case No. CIV-16-1137-D

ORDER
Plaintiff R. Wayne Johnson, a Texas prisoner who appears pro se, filed this case
on September 29, 2016. It was Plaintiff’s third case filing in this Court since August 18,
2016. In prior cases, the assigned magistrate judges have recommended that the actions
be dismissed for failure to pay the required filing fees. See Johnson v. United States,
Case No. CIV-16-947-M, R&R (W.D. Okla. Sept. 12, 2016); Johnson v. Mardel
Bookstore, Inc., Case No. CIV-16-1032-M, R&R (W.D. Okla. Oct. 31, 2016). In the first
case, Magistrate Judge Suzanne Mitchell determined from publicly available court
records that Plaintiff is barred from proceeding in forma pauperis under 28 U.S.C. § 1915
by operation of the “three strikes” provision of § 1915(g).
The Court’s research confirms the correctness of Judge Mitchell’s determination.
See Johnson v. Whatley, 73 F. App’x 79 (5th Cir. 2003) (finding Plaintiff had
accumulated four strikes and § 1915(g) applied); Johnson v. Thaler, No. 2:10-CV-041,
2012 WL 612529, R&R (N.D. Tex. Feb. 14, 2012) (listing abusive case filings and
recommending sanctions), adopted, 2012 WL 624581 (N.D. Tex. Feb. 27, 2012); see also

Johnson v. Two Unknown U.S. Marshals, Civ. Action No. 08-5522, 2008 WL 5190888
(E.D. Pa. Dec. 9, 2008) (applying § 1915(g)); Johnson v. Ramos, No. 1:06CV516, 2006
WL 2639511 (E.D. Tex. Sept. 13, 2006) (applying § 1915(g)).
In this case, Plaintiff has neither paid the required filing fee nor requested leave to
proceed without prepayment under § 1915. In the Complaint, Plaintiff asserts civil rights
claims for damages and seeks a writ of mandamus against the magistrate judges who
issued unfavorable reports in his prior cases, Judge Mitchell and Judge Shon T. Erwin.
Plaintiff does not allege that he is “under imminent danger of serious physical injury.”

See 28 U.S.C. § 1915(g). Therefore, because Plaintiff has not paid the filing fee and
because he cannot bring this action without prepayment, the Court finds that the action
should be dismissed without prejudice to refiling.
IT IS THEREFORE ORDERED that Plaintiff’s action is DISMISSED without
prejudice. A separate judgment of dismissal shall be entered.
IT IS SO ORDERED this 3rd day of February, 2017.

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