Lewis v. State of Oklahoma

Filing 10

ORDER ADOPTING 8 Report and Recommendation, DENYING 7 Motion for Leave to Proceed in forma pauperis filed by Herbert R Lewis, Jr, DISMISSING action without prejudice. Signed by Honorable Stephen P. Friot on 8/15/2017. (llg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
HERBERT R. LEWIS, JR.,
Plaintiff,
-vsSTATE OF OKLAHOMA, et al.,
Defendants.

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Case No. CIV-17-0544-F

ORDER
Plaintiff Herbert R. Lewis, Jr., a state pre-trial detainee appearing pro se
whose pleadings are liberally construed, has conditionally filed an action under 42
U.S.C. § 1983.
In Magistrate Judge Charles B. Goodwin’s Report and Recommendation of
July 27, 2017 (doc. no. 8, the Report), the magistrate judge recommends denial of
plaintiff’s application to proceed in forma pauperis (doc. no. 7), and recommends
dismissal of this action without prejudice.

The Report makes these

recommendations based on the following conclusions.
1). With respect to the motion to proceed in forma pauperis, the Report finds
that plaintiff provided incomplete financial information for the six-month period
immediately preceding the filing of the complaint, and that plaintiff did not attach a
certified copy of his account statement for the same six-month period.
2). The Report finds that plaintiff would not be entitled to in forma pauperis
status even if he had provided complete financial information because plaintiff has
three strikes and is therefore not entitled to proceed in forma pauperis absent a
showing that he is in imminent danger of serious physical injury, a showing he has
not made.

3). The Report finds that although a plaintiff who is denied leave to proceed
in forma pauperis is ordinarily permitted twenty-one days to pay the required filing
fee before the action is dismissed, the waiting period need not be observed here
because even if plaintiff had paid the filing fee, he has failed to prosecute his case in
accordance with the magistrate judge’s orders and the procedural rules of the court.
The Report notes that the magistrate judge had previously informed plaintiff that the
one-paragraph complaint did not comply with federal and local procedural rules, and
that an amended complaint curing specific defects must be filed or this action might
be dismissed. The Report noted that although plaintiff had been given ample
opportunity to do so, plaintiff had not submitted an amended complaint and that
plaintiff had not explained why he could not do so within the time given for that
purpose.
For these and other reasons set out more fully in the Report, the magistrate
judge recommends that plaintiff’s in forma pauperis application be denied under 28
U.S.C. § 1915(g), and that the complaint be dismissed without prejudice for failure
to comply with the court’s orders and procedural rules.
Plaintiff states several objections to the Report. Doc. no. 9. Construing these
objections liberally, the court presumes that plaintiff intends to object to the Report
in its entirety. Accordingly, the court has conducted a de novo review of the entire
Report.
Plaintiff’s objections argue that he has submitted the necessary financial
papers on the approved forms. Plaintiff, however, still has not submitted all of the
necessary financial information regarding the six-month period, and he still has not
submitted a certified copy of his actual account statement (or the institutional
equivalent) for the six-month period.
Plaintiff’s objections also state that “Plaintiff has submitted in form that he is
under imminent danger of serious physical injury.” Doc. no. 9, p. 1 of 2. In that
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regard, plaintiff attaches to his objections a “Request to Staff,” dated August 3, 2017,
which includes the statement that “My life is in danger and imminent bodily harm
can come to myself anytime….” Doc. no. 9-1. However, as explained in the Report,
a plaintiff must make specific, credible allegations of imminent danger in order to
satisfy the imminent danger exception of § 1915(g). Plaintiff has not done so, in his
objections or otherwise.
Finally, plaintiff’s objections argue that he has submitted a short and plain
statement of facts supporting a legal claim and that he has included a decipherable
demand for relief sought, which is what the federal rules, and the local rules of this
court, require.

But plaintiff’s original complaint is deficient for the reasons

previously identified by the magistrate judge, and plaintiff has not submitted an
amended complaint which cures the deficiencies.

Accordingly, the Report’s

assessment that plaintiff has not complied with the magistrate judge’s orders or with
procedural rules of the court, remains accurate.
The court has considered all of plaintiff’s objections, whether or not addressed
in this order. Having done so, and having conducted a de novo review of the Report,
plaintiff’s objections are DENIED (doc. no. 9) and the Report (doc. no. 8) is
ACCEPTED, ADOPTED and AFFIRMED. As recommended in the Report, this
action is DISMISSED without prejudice.
IT IS SO ORDERED this 15th day of August, 2017.

17-0544p001.docx

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