Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Okpala v. Vasquez

United States District Court, S.D. Mississippi, Western Division

January 26, 2017

OKEY GARY OKPALA PLAINTIFF
v.
FNU VASQUEZ, Warden, Federal Correctional Institution, Beaumont Low, Texas, ET AL. DEFENDANTS

          ORDER ADOPTING REPORT AND RECOMMENDATION

          DAVID C. BRAMLETTE, UNITED STATES DISTRICT JUDGE

         This 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. 1201 (2007).

         Okpala 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 is paid.

         As 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.

         The 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 everyone else.

Adepegba, 103 F.3d at 386-87.

         Excepted 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).

         In his 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).

         Okpala 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).

         The 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[1] 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 action.”).

         In 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 necessary).

         The 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.[2]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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.