Jackson v. Soper et al

Filing 64

MEMORANDUM DECISION and ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS. It is hereby ordered that: Plaintiff shall be added to the Court's list of prisoner litigants having three-strikes under 28 USC 1915(g); Plaintiff is DENIE D leave to proceed without prepayment of fees in this case; and 3) this case will be automatically DISMISSED under 28 USC 1915(g) with no further warning to Plaintiff, unless he pays the entire $350.00 filing fee within ten days from the date of this Order. Signed by Judge Clark Waddoups on 3/18/2013. (kpf)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

LAWRENCE MARSHALL JACKSON,

MEMORANDUM DECISION AND
ORDER DENYING LEAVE TO
PROCEED IN FORMA PAUPERIS

Plaintiff,
v.

Case No. 2:11-CV-68-CW

STEVEN TURLEY et al.,

District Judge Clark Waddoups

Defendants.

Plaintiff, Lawrence M. Jackson, an inmate at the Utah State Prison, filed this pro se civil
rights suit under 42 U.S.C. § 1983. See 42 U.S.C.S. § 1983 (2013). Plaintiff was initially
allowed to proceed in forma pauperis pending further review and clarification of his claims. See
28 id. § 1915. The Court now addresses whether Plaintiff should be allowed to continue this suit
without first paying the required filing fee. For the reasons discussed below, the Court
concludes that Plaintiff must pay the full filing fee before this case can proceed.
ANALYSIS
I. Background
Plaintiff initiated this lawsuit on January 14, 2011, by filing a motion for leave to proceed
in forma pauperis (IFP). (Doc. No. 1.) Plaintiff’s original 86-page hand-written Complaint was
received with his IFP petition, but due to initial screening it was not filed until May 31, 2011.1

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The Complaint (Doc. No. 6), which asserted thirteen separate claims against sixteen
individual defendants, also included hundreds of pages of exhibits (Doc. Nos. 13-15).

After additional review, the Court entered an Order to Show Cause (Doc. No. 18) directing
Plaintiff to explain why this case should proceed without prepayment of the filing fee, despite
Plaintiff having apparently “struck-out” under the three-strikes provision of the IFP statute.
Plaintiff eventually responded with a rambling 30-page document in which he repeatedly
referenced his diabetes and other physical and mental ailments. (Doc. No. 22.) Based on this
document, and in an abundance of caution, the Court reserved judgment on the three-strikes
issue and directed Plaintiff to file an amended complaint clarifying his claims. On April 23,
2012, Plaintiff filed an Amended Complaint which was then served upon Defendants.
Defendants responded by filing a motion to dismiss reasserting, inter alia, that Plaintiff’s present
claims are similar to those previously litigated by Plaintiff and should not be exempt from the
three-strikes rule. (Doc. No. 50-51.) Based on Defendants’ motion the Court now revisits the
IFP issue.
II. Three-Strikes Provision
The IFP provision of the Prisoner Litigation Reform Act authorizes any court of the
United States to allow an indigent prisoner to proceed without prepaying a required filing fee.
See 28 U.S.C. § 1915(a). However, it also places restrictions on prisoners who have repeatedly
filed frivolous or meritless complaints. The relevant portion of the statute 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.
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28 U.S.C.S. § 1915(g) (2013) (emphasis added). “These fee provisions are intended ‘to reduce
frivolous prisoner litigation by making all prisoners seeking to bring lawsuits or appeals feel the
deterrent effect created by liability for filing fees.’” Cosby v. Meadors, 351 F.3d 1324, 1327
(10th Cir. 2003)(quoting In re Smith, 114 F.3d 1247, 1249 (D.C. Cir. 1997)).
The three-strikes provision in Section 1915(g) applies where (1) the plaintiff is
imprisoned at the time he files suit; and, (2) he previously filed three or more cases in federal
court while incarcerated that were dismissed for failure to state a claim or as frivolous. The
language of Section 1915(g) is mandatory. A prisoner who falls within the three-strikes
provision, but cannot show that he is “under imminent danger of serious physical injury,” is
required to prepay the entire filing fee before his claims can proceed. Kinnell v. Graves, 265
F.3d 1125, 1127 (10th Cir. 2001). In determining what counts as a strike, “[i]t is irrelevant under
§ 1915(g) whether the district court affirmatively stated in the order of dismissal that it was
assessing a strike.” Smith v. Veterans Administration, 636 F.3d 1306, 1313 (10th Cir. 2011)
(noting that orders of dismissal often do not explicitly state that the dismissal counts as a strike) .
Moreover, “a dismissal without prejudice counts as a strike, so long as the dismissal is made
because the action is frivolous, malicious, or fails to state a claim.” Id.
III. Plaintiff’s Litigation History
As Defendants have correctly noted, Plaintiff has a long history of filing frivolous or
meritless claims in this district. On April 22, 1999, The Honorable Judge David K. Winder
dismissed a civil rights complaint filed by Plaintiff in case number 2:98-CV-00653 as frivolous
pursuant to 28 U.S.C. § 1915(e)(2)(B). (Case no. 2:98-CV-00653, Doc. No. 25. ) On March 22,
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2005, The Honorable Judge Dale A. Kimball dismissed another civil rights complaint brought by
Plaintiff in case number 2:03-CV-00533 for failure to state a claim under 28 U.S.C. §
1915(e)(2)(B). (Case no. 2:03-CV-533, Doc. No. 23.) Finally, on January19, 2010, in case
number 2:08-CV-382, The Honorable Judge Tena Campbell dismissed yet another civil rights
complaint filed by Plaintiff, again for failure to state a claim.2 (Case no. 2:08-CV-382, Doc. No.
31.)
Because the record clearly shows that Plaintiff has filed at least three previous IFP cases
in this district while incarcerated that were dismissed as frivolous or failing to state a claim, the
Court concludes that Plaintiff has officially “struck out” under 28 U.S.C. 1915(g).3 Thus, absent
a showing that he is under imminent danger of serious physical injury, Plaintiff cannot proceed
with this suit without prepaying the required filing fee.
IV. Plaintiff’s Present Claims
Despite being afforded multiple opportunities to do so, Plaintiff has not shown that his
present claims involve imminent danger of serious physical injury. In fact, it is apparent from

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The Court notes that the Complaint in case 2:08-CV-382 included many of the same
claims and allegations presented in this case.
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It should also be noted that on December 9, 2008, in case number 2:05-CV-365,
Plaintiff’s petition for habeas corpus relief was dismissed by The Honorable Judge Dee Benson
as procedurally barred and without merit. That case also included claims of a conspiracy to
manipulate medical treatment and racism, which the court concluded were more properly
construed as civil rights claims. (Case No. 2:05-CV-365, Doc. No. 41.) As the Tenth Circuit
has held, “an action that is filed as a habeas petition, but which actually challenges conditions of
confinement, may be counted [as a strike under 28 U.S.C. 1915(g)].” Owens-El v. United States,
No. 02-1281, 49 Fed. Appx. 247, 2002 WL 31344700, at **2 (10th Cir. Oct. 18, 2002). Thus,
Plaintiff could possibly be credited with a fourth strike.
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Plaintiff’s filings that he is primarily trying to re-litigate many of the same issues raised in his
previous lawsuits, only with some additional embellishment. Of the eleven claims presented in
Plaintiff’s 33-page Amended Complaint, only one (Count V) appears to have any bearing on
Plaintiff’s immediate physical well-being. The remainder of Plaintiff’s claims, though difficult
to decipher, primarily involve issues such as legal access, property confiscation, housing
classification, and employment, which have nothing to do with any imminent danger. Such
claims are obviously not exempt from the three-strikes provision.
Regarding Count V, Plaintiff’s allegations show merely ongoing generalized
dissatisfaction with the treatment provided for his various mental and physical ailments,
including diabetes and related maladies. Plaintiff has not presented any specific facts showing
that he is in imminent danger of serious physical injury. If Plaintiff’s mundane allegations were
sufficient to exempt him from the three-strikes provision, the rule would be rendered virtually
meaningless. Moreover, the fact that Plaintiff continues to file voluminous, convoluted,
redundant pleadings, with hundreds of pages of exhibits makes it even more doubtful that
Plaintiff actually faces such imminent danger. It is unlikely that if Plaintiff had specific facts
showing an imminent risk of serious physical harm that he would bury them in a voluminous
recitation of previously litigated grievances. Moreover, even if Plaintiff could satisfy the
imminent harm requirement, he cannot use that to piggy-back into court a host of entirely
unrelated claims that could easily be brought in a separate suit.
Thus, having throughly reviewed Plaintiff’s pleadings the Court finds that Plaintiff’s
present claims are not exempt from the three-strikes provision of Section 1915(g).
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ORDER
Accordingly, IT IS HEREBY ORDERED that:
(1) Plaintiff shall be added to the Court’s list of prisoner litigants having three-strikes
under 28 U.S.C. § 1915(g);
(2) Plaintiff is DENIED leave to proceed without prepayment of fees in this case; and,
(3) this case will be automatically DISMISSED under 28 U.S.C. § 1915(g), with no
further warning to Plaintiff, unless he pays the entire $350.00 filing fee within ten days from the
date of this Order.4
DATED this 18th day of March, 2013.
BY THE COURT:

CLARK WADDOUPS
United States District Judge

4

If, at any time, Plaintiff becomes aware of specific facts showing that he is in imminent
danger of serious physical harm he can file a new case alleging only claims supported by such
specific facts. If necessary, Plaintiff may request assistance from the prison Contract Attorneys
in drafting such a complaint. However, any complaint containing claims unrelated to such
imminent harm will be dismissed in its entirety unless Plaintiff prepays the required filing fee.
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