United States District Court, S.D. Mississippi, Western Division
ORDER ADOPTING REPORT AND RECOMMENDATION
C. BRAMLETTE, UNITED STATES DISTRICT JUDGE
cause is before the Court on the Report and Recommendation
(docket entry 77) of Magistrate Judge Michael T. Parker, and
the plaintiff Okey Gary Okpala's Objections thereto
(docket entry 80). In his Report and Recommendation
(“R&R”), Magistrate Judge Parker addresses
whether the plaintiff meets the “imminent danger
exception, ” in light of his having accumulated three
strikes pursuant to 28 U.S.C. § 1915(g) (see Okpala
v. Lappin, No. 1:09-cv-828, 2010 WL 55997 (E.D. Tex.
Jan. 5, 2010)). Okpala was barred from proceeding in forma
pauperis (“IFP”) before the United States Supreme
Court in 2007 because he had “repeatedly abused [the]
Court's process.” Okpala v. Drew, 549 U.S.
brings the present 42 U.S.C. § 1983 action alleging
denial of adequate medical care by various defendants from
two different prisons. While a prisoner, Okpala has brought
at least three civil actions which have been dismissed as
frivolous, malicious, or for failing to state a claim upon
which relief could be granted. Okpala moved to proceed IFP in
this action, and Magistrate Judge Parker granted provisional
IFP status for the limited purpose of determining if the
plaintiff was in “imminent danger” due to his
medical condition. The parties have briefed the issue,
Magistrate Judge Parker has issued his R&R, and Okpala
has filed his objections thereto. The R&R finds that the
plaintiff has failed to show that he was in imminent danger
of serious physical injury at the time he filed his
Complaint. The R&R also recommends that the
plaintiff's IFP status be revoked pursuant to 28 U.S.C.
§ 1915(g), that this lawsuit be dismissed without
prejudice, and that the plaintiff be given thirty days to
reopen this civil action if the entire filing fee of $350.00
Magistrate Judge Parker points out in his R&R, since the
time of filing of Okpala's Complaint, his sentence has
been completed and he is currently being detained by United
States Immigration and Customs Enforcement for deportation
purposes. Such detainees are not “prisoners” for
purposes of the Prison Litigation Reform Act
(“PLRA”). See Ojo v. INS, 106 F.3d 680,
683 (5th Cir. 1997). Nevertheless, the issue of
whether an individual is a “prisoner” under the
PLRA turns on whether the prisoner-plaintiff was confined
when his lawsuit was filed. See,
e.g., Witzke v. Femal, 376 F.3d 744, 750
(7th Cir. 2004); Andrews v. Gunter, 2007
WL 1154108, at *4 n.3 (W.D. La. March 29, 2007); Green v.
Palo Pinto Cnty., 2013 WL 3096089, at *1 (N.D. Tex. June
20, 2013). At the time Okpala filed his Complaint, he was
incarcerated pursuant to a valid conviction and in the
custody of the Federal Bureau of Prisons. Thus, he is
considered a “prisoner” for purposes of
determining his IFP status.
PLRA provides that a prisoner's privilege to proceed IFP
shall be denied if he has, on three prior occasions during
detention, had an action or appeal dismissed as frivolous,
malicious, or failing to state a claim. 28 U.S.C. §
1915(g). The Court must consider all actions which were
dismissed as frivolous, malicious, or failing to state a
claim, whether dismissed before or after enactment of the
PLRA. Adepegba v. Hammons, 103 F.3d 383, 386
(5th Cir. 1996). Denial of IFP status under the
three strikes provision is a matter of procedure.
Section 1915(g) does not affect a prisoner's substantive
rights, and it does not block his or her access to the
courts. A prisoner may still pursue any claim after three
qualifying dismissals, but he or she must do so without the
aid of the i.f.p. procedures ....
Prisoners who are not allowed to proceed i.f.p. may pursue
their substantive claims just as anyone else by paying the
filing fee. This requirement is neither novel nor penal. It
does not increase a prisoner's liability, but merely puts
prisoners who abuse a privilege on the same footing as
Adepegba, 103 F.3d at 386-87.
from this bar are cases in which “the prisoner is under
imminent danger of serious physical injury.” 28 U.S.C.
§ 1915(g). “[T]he determination as to whether a
prisoner is in ‘imminent danger' must be made as of
the time that he seeks to file IFP his complaint or notice of
appeal.” Choyce v. Dominguez, 160 F.3d 1068,
1070 (5th Cir. 1998).
Complaint, the plaintiff alleges that he was denied adequate
medical care related to his sciatica - which causes him great
pain - at various times by different defendants at Federal
Correctional Complex Beaumont Low and at the Adams County
Correctional Center. According to the plaintiff, he was in
custody at the Federal Correctional Complex Beaumont Low from
2010 to 2014 when he was diagnosed with lumbar disc problems.
See Motion to Proceed IFP (docket entry 2, p. 1).
The plaintiff was transferred to Adams County Correctional
Center in September of 2014, and he filed his Complaint and
Motion to Proceed IFP on May 11, 2015. (Id., p. 2;
Complaint, p. 6).
also claims that defendants at the Adams County Correctional
Center did not take him to a neurosurgeon even though he was
scheduled to see one at his previous prison, and did
not give him a “proactive brace” that he saw
advertised on television. (Complaint, p. 4). Furthermore, the
plaintiff alleges that he is subject to
“‘imminent danger' [because] significant
serious and permanent disfigurement and disability to his
person [will result] ... without ... timely and adequate
medical treatment.” (Complaint, p. 5). In his brief on
this issue, the plaintiff alleges that his medical status is
worsening and that he has to take more pills for his
condition. (Plaintiff's Brief, pp. 1-2).
plaintiff had been transferred from Federal Correctional
Complex Beaumont Low, and was incarcerated at Adams County
when he filed his Complaint and Motion to Proceed IFP. He
filed his Complaint approximately eight months after he was
transferred. The plaintiff was not in imminent danger of
serious physical injury from any of the defendants from the
Federal Correctional Complex Beaumont Low at the time his
complaint was filed because he was not at that facility at
the time. Therefore, the plaintiff should not be allowed to
proceed IFP against the Federal Correctional Complex Beaumont
Low defendants, because he could not have been in imminent
danger of serious physical injury from those Defendants at
the time his Complaint was filed. See Summers v.
Livingston, No. 1:12-CV-135, 2014 WL 1877437, at *2
(E.D. Tex. May 6, 2014) (“Because plaintiff had been
transferred ..., he was not in imminent danger of serious
harm at the time he filed this action. Accordingly, he is
barred from proceeding in forma pauperis in this
addition, “conclusional allegations are insufficient to
show [that a plaintiff is] under imminent danger of serious
physical injury at the time that he filed his
complaint.” Smith v. Dir., Texas Dep't of
Criminal Justice, Corr. Institutions Div., 258 F.
App'x 632 (5th Cir. 2007)(citing Banos v.
O'Guin, 144 F.3d 883, 885 (5th Cir.
1998)). “To satisfy the ‘imminent danger'
exception, a complainant must offer specific fact allegations
of ongoing serious physical injury, or of a pattern of
misconduct evidencing the likelihood of imminent serious
physical injury.” Jackson v. United States,
2016 WL 1375591, at *2 (N.D. Tex. Apr. 7, 2016) (general
complaints about ongoing nature of alleged lack of medical
care do not meet imminent danger exception)(internal
quotation marks and citations omitted); Cain v.
Shilling, No. 799-CV-898, 2001 WL 515263, *2 (W.D. Va.
Mar. 14, 2001)(imminent danger not established when prisoner
alleged he did not receive the treatment he believed
plaintiff's allegations regarding the Adams County
Correctional Center defendants' alleged actions or
omissions concerning his medical treatment are also
insufficient to meet the threshold requirement of imminent
danger of serious physical injury.See Edmond v. Texas
Dep't of Corrections, 1998 WL 723877 (5th
Cir. Oct. 7, 1998)(unpublished)(allegations about the quality
of medical care, including delay in medical care for
fractured jaw, found insufficient to satisfy the §
1915(g) exception); Humphrey v. Lopez, No.
5:04-cv-94, 2004 WL 980512, at *2 (N.D. Tex. May 6,
2004)(allegations of delay in medical care due to racial
discrimination failed to establish imminent danger of serious
physical injury); Gallagher v. McGinnis, No.
00-1468, 2000 WL 739285, at *1 (E.D. La. June 5,
2000)(allegations of inadequate medical care ...