Duvall v. Troutt

Filing 15

ORDER ADOPTING 10 Report and Recommendation, DENYING 2 Motion for Leave to Proceed in forma pauperis filed by John C Duvall, DENYING 3 Request for Imminent Danger Exception filed by John C Duvall, DENYING 9 Rule 35 Motion for Independent Medical Examination and for the Preservation of Evidence filed by John C Duvall, GRANTING 12 Motion to Withdraw Notice of Appeal filed by John C Duvall. In light of new allegations in the Second Amended Complaint which potentially address the immi nent danger exception, all of these mtns are denied w/o prejudice to consideration de novo, in the event that Mr. Duvall files a new mtn or mtns seeking leave to proceed in forma pauperis under the imminent danger exception, citing addl information n ot presented to the magistrate judge in the original mtns. If Mr. Duvall opts to pursue that relief, any such mtns are DUE within 21 days of this date. If no such mtns are filed, this action will be closed at that time & jdgt will be entered based on the findings in this order. Signed by Honorable Stephen P. Friot on 2/28/2017. (llg) (Main Document 15 replaced on 2/28/2017) (llg).

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
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JOHN C. DUVALL,
Plaintiff,
-vsJEFFREY COY TROUTT,
Defendant.

Case No. CIV-16-1488-F

ORDER
This action is brought pursuant to 42 U.S.C. § 1983 by state prisoner John C.
Duvall, alleging violation of his federal constitutional rights. Mr. Duvall appears
pro se and his pleadings are liberally construed.
The magistrate judge issued a Report and Recommendation which included
three recommendations. Doc. no. 10. The Report recommends: denying plaintiff’s
motion for leave to proceed in forma pauperis (doc. no. 2); denying plaintiff’s
motion for an imminent danger exception to the three-strikes rule (doc. no. 3);1 and
denying plaintiff’s motion brought under Rule 35, Fed. R. Civ. P., seeking an
independent medical examination and asking for the preservation of medical
evidence (doc. no 9).
Plaintiff objects to the Report and Recommendation. Doc. no. 11. All
objections have been considered de novo.2

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The three-strikes rule, and the imminent danger exception, are set out in 28 U.S.C. § 1915(g),
which is quoted in the Report, doc. no. 10, p. 2, n.1.

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Mr. Duvall attached a Notice of Appeal to his objections. Doc. no. 11-3. He subsequently moved
to withdraw that notice. Doc. no. 12. The motion to withdraw the Notice of Appeal is
GRANTED.

Pursuant to the Amended Complaint (doc. no. 7), Mr. Duvall alleges
deliberate indifference to his medical needs based on inadequate treatment and an
otherwise inadequate response to his medical condition by defendant Jeffrey Coy
Troutt, an Oklahoma Department of Corrections physician working at the James
Crabtree Correctional Center. The medical condition is an alleged growth in Mr.
Duvall’s throat. Among other things, Mr. Duvall alleges that he suffers from
constant pain in his throat which has been getting worse since July 27, 2016, during
which time the growth has been getting larger. Mr. Duvall alleges that the defendant
did not have the proper equipment (such as a mirror) to examine the growth, and that
he did not refer Mr. Duvall for treatment by a specialist. Mr. Duvall alleges that
after his visits with the defendant in August, 2016, he immediately wrote two
requests to staff addressing the inadequate treatment and that as of the date of the
amended complaint, he had not been referred to or seen by anyone who has the
appropriate medical implements. Mr. Duvall alleges continuous suffering from the
pain of choking, as well as gagging, vomiting and burning of aspirated food and
liquids.
In addition, in a letter submitted with his Rule 35 motion, Mr. Duvall stated
that he is “choking to death slowly” and that he is “hopeful that maybe the Attorney
Generals’ Office will do something to mitigate the damages by getting me to a
surgeon.” Doc. no. 8.
A Second Amended Complaint was submitted to the court after the Report
was entered. Doc. no. 13. Although the Second Amended Complaint was filed
without leave of court, the court accepts it. In that new version of the complaint,
Mr. Duvall alleges, among other things, that “Troutt refuses to treat my serious
medical needs consisting of a growth growing in my air-way because I called him a
liar in writing” (¶ 29); that Troutt has retaliated against Mr. Duvall (¶¶ 18-27); and
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that Mr. Duvall has attempted to go around Troutt to obtain medical care, “all to no
avail.” ¶ 30. Various grievances, responses, and requests to staff are attached to the
Second Amended Complaint as exhibits. The most recent of these exhibits (doc.
nos. 13-6 and 13-7) are dated in November and December of 2016.

These

documents request medical treatment for the growth in Mr. Duvall’s throat.
Critical to the Report’s conclusion that Mr. Duvall had not shown that he was
entitled to an imminent danger exception to the three-strikes rule was the fact that
Mr. Duvall had not alleged that he had sought or that he had been denied medical
care for what the Report characterized as the newly developed and purportedly lifethreatening symptoms of choking and vomiting stemming from the growth in his
throat. See, doc. no. 10, p. 4. As noted above, however, Mr. Duvall’s Second
Amended Complaint (which was not available to the magistrate judge) appears to
show that Mr. Duvall has at least made some recent efforts to obtain medical
treatment for what he contends is a worsening and potentially life-threatening
medical condition. (In addition, in his objection to the Report, Mr. Duvall takes
issue with the magistrate judge’s characterization of choking and vomiting as new
symptoms which were not present when Mr. Duvall saw Troutt in August. See, e.g.,
doc. no. 11, p. 3, asking “Who told Magistrate Jones that the ‘symptoms of choking
and vomiting stemming from the growth’ are new since I initially saw Defendant
Troutt?”)
The Report finds, and the court agrees, that Mr. Duvall has three strikes and
that he may proceed in forma pauperis only if he establishes that his circumstances
come within the imminent danger exception to the three-strikes rule, and only then
if he otherwise qualifies for pauper status under 28 U.S.C. § 1915. To qualify for
the imminent danger exception, a plaintiff must make specific, credible allegations
that, at the time he filed his complaint, he was under imminent danger of serious
physical harm. See, Hafed v. Federal Bureau of Prisons, 635 F.3d 1172, 1179-80
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(10th Cir. 2011) (emphasis added) (internal quotation marks omitted). Generally,
such allegations must be made in the prisoner’s motion for in forma pauperis status,
however, other filings may also be considered by the court. Id. at 1180. A plaintiff
seeking such an exception should make specific reference to which defendant
denied what medication or treatment, and for what ailment, and on what occasion.
Id. The plaintiff should also identify at least the general nature of the serious physical
injury which he asserts is imminent. Id. Vague and utterly conclusory assertions are
insufficient. Id. The court agrees with the Magistrate Judge that based on the
materials before the court at the time the Report was entered, Mr. Duvall did not
show that he was entitled to invoke the imminent danger exception to the threestrikes rule. Accordingly, as recommended in the Report, Mr. Duvall’s motions will
be denied. In light of the new allegations contained in the Second Amended
Complaint, however, Mr. Duvall should be given the opportunity to file new motions
which cite additional information not previously available to the Magistrate Judge.
Accordingly, the Report and Recommendation is ACCEPTED, AFFIRMED
and ADOPTED.

Mr. Duvall’s objections to the Report are DENIED. As

recommended in the Report, the motion to proceed in forma pauperis (doc. no. 2) is
DENIED; the motion seeking an imminent danger exception to the three-strikes rule
(doc. no. 3) is DENIED; and the Rule 35 motion is DENIED. In light of new
allegations in the Second Amended Complaint which potentially address the
imminent danger exception, all of these motions are denied without prejudice to
consideration de novo, in the event that Mr. Duvall files a new motion or motions
seeking leave to proceed in forma pauperis under the imminent danger exception,
citing additional information not presented to the magistrate judge in the original
motions. If Mr. Duvall opts to pursue that relief, any such motions are DUE within
twenty-one days of the date of this order. If no such motions are filed, this action

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will be closed at that time and judgment will be entered based on the findings in this
order.
IT IS SO ORDERED this 28th day of February, 2017.

16-1488p001.docx

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