Davis v. Martin et al

Filing 14

ORDER ADOPTING REPORT AND RECOMMENDATION 12 of Magistrate Judge Charles B. Goodwin...plaintiff's application to proceed in forma pauperis 2 is denied; plaintiff shall pay the $400.00 filing fee in this case within 21 days of this order, or this case will be dismissed without prejudice to refiling. Signed by Honorable Joe Heaton on 3/6/2017. (cla)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
EZEKIEL DAVIS,
Plaintiff,
v.
AMBER MARTIN, et al.,
Defendants.

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NO. CIV-16-1375-HE

ORDER
Plaintiff Ezekiel Davis, a state prisoner appearing pro se, filed this suit pursuant to
42 U.S.C. § 1983, asserting violations of his constitutional rights. The matter was referred
for initial proceedings, consistent with 28 U.S.C. § 636(b)(1)(B) & (C), to U.S. Magistrate
Judge Charles B. Goodwin, who has recommended that plaintiff’s application to proceed
in forma pauperis be denied. The Report and Recommendation (“Report”) indicates that
plaintiff has three or more “strikes” within the meaning of the Prison Litigation Reform
Act, 28 U.S.C. § 1915(g) (the “PLRA”), such that in forma pauperis status should only be
granted if plaintiff makes specific credible allegations that he is under imminent danger of
serious physical injury.
Plaintiff has filed an objection to the Report, and does not dispute that he has three
strikes under the PLRA. Instead, plaintiff alleges that he is under imminent danger of
serious physical harm. He contends that he is being denied a referral to a specialist
physician to treat his diagnosed degenerative disc disease, and that he has been
administered an anti-psychotic drug which causes him to wake from sleeping with a “hung-

over feeling.” Plaintiff also asserts that various correctional facility staff members continue
to retaliate against him by issuing disciplinary sanctions without cause and reading his legal
mail.
The court concludes that these allegations are not sufficient to constitute a threat of
“imminent danger of serious physical injury” under the PLRA. As noted in the Report,
plaintiff’s spinal condition was addressed by a medical doctor and there is no allegation
that the denial of specialist referral will lead to serious physical injury. See Davis v. GEO
Grp. Corrections, Inc., No. CIV-16-0462-HE (W.D. Okla. Feb. 15, 2017) (denying
pauperis status to this plaintiff on the same basis). The side effects of plaintiff’s medication
also do not rise to the level of serious physical injury. The remainder of plaintiff’s
arguments are also addressed in the Report and properly rejected.
Accordingly, the Report and Recommendation [Doc. #12] is ADOPTED.
Plaintiff’s application to proceed in forma pauperis [Doc. #2] is DENIED. Plaintiff shall
pay the $400 filing fee in this case within twenty-one days of this order, or this case will
be dismissed without prejudice to refiling.
IT IS SO ORDERED.
Dated this 6th day of March, 2017.

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