Walker v. Jenkins
| Decision Date | 27 January 2023 |
| Docket Number | Civil Action 1:20CV197-HSO-RPM |
| Parties | DEMARIO DONTEZ WALKER a/k/a Kiriyama Zyreonia San Givonni PLAINTIFF v. MELISSA JENKINS et al DEFENDANTS |
| Court | U.S. District Court — Southern District of Mississippi |
REPORT & RECOMMENDATION
Plaintiff Demario Dontez Walker, proceeding pro se and in forma pauperis, filed on June 12, 2020, a 42 U.S.C § 1983 prisoner civil rights complaint alleging that he is under imminent danger of serious physical injury at the Central Mississippi Correctional Facility (CMCF) based on claims of inadequate medical care, failure to protect, and retaliation. Plaintiff is “struck out” under the Prison Litigation Reform Act because he has accumulated three or more strikes. See 28 U.S.C. § 1915(g); Walker v. Miss. Parole Bd., 333 Fed.Appx. 843, 845 (5th Cir. 2009). Thus, he is only allowed to proceed in forma pauperis to the extent he alleges that he is “under imminent danger of serious physical injury.” Id.
Defendants filed a motion to revoke Plaintiff's IFP status and argued that he has not demonstrated that he is entitled to the imminent-danger exception to the three-strikes rule. See Doc. [30]. In a separate lawsuit filed by Plaintiff, it was brought to the undersigned's attention that Plaintiff had committed a fraud upon the Court in securing a name change. See Walker v. Hunt, No 1:20-CV-426-LG-RPM, 2022 WL 17484273, at *4 (S.D.Miss. July 12, 2022). Plaintiff's conduct in Walker v. Hunt prompted the undersigned to further scrutinize his in forma pauperis status in the instant lawsuit.
On February 7, 2022, the Court conducted a hearing on Defendants' motion to revoke and questioned Plaintiff regarding any corroborating proof he might have to support his imminent-danger claim. See Minute Entry (2/7/2022). After the hearing, the Court afforded Plaintiff the opportunity (1) to provide the Court with the names of eyewitnesses who have personal knowledge of the allegations in Plaintiff's complaint for the period of January 1 2020, through September 1, 2020, and who would be willing to provide an affidavit; (2) to serve Defendants with a request for production of documents seeking Plaintiff's Prison Rape Elimination Act (PREA) file for the period of January 1 2020, through September 1, 2020; and (3) to provide the Court with documentary evidence supporting the allegations in his complaint of being under imminent danger of serious physical injury at CMCF from January 1, 2020, through September 1, 2020. Doc. [42]. In light of Plaintiff's testimony and the anticipated submission of additional documentary evidence, the Court found Defendants' first motion to revoke to be moot. Doc. [43]. On March 4, 2022, Plaintiff submitted his response to the Court's order, along with affidavits and other supporting exhibits attached. Doc. [47]. Defendants have re-urged their motion to revoke Plaintiff's IFP status, which is now before the undersigned for consideration. Doc. [55].
Plaintiff has a long history of filing “scores of lawsuits” that allege “disturbing and outrageous allegations without a shred of evidence to support them.” See Walker v. Turner, No. 4:18CV48-GHD-DAS, 2019 WL 1460888 at *5 (S.D.Miss. Apr. 2, 2021). On at least three other occasions, Plaintiff has been required to provide additional evidence supporting the allegations in his complaint before he would be allowed to continue in forma pauperis. See Walker v. Hunt, 2022 WL 17484273, at *2; Walker v. Perry, No. 1:20cv302-HSO-BWR, 2022 WL 8176157, at *2 (S.D.Miss. Oct. 14, 2022); Walker v. Turner, 2019 WL 1460888. During his expansive litigation history beginning in 2003, Plaintiff has filed more than 60 federal lawsuits and has accumulated at least nine strikes. See Walker v. Perry, 2022 WL 8176157 (S.D.Miss. Oct. 14, 2022) (attachment listing Plaintiff's lawsuits). This Court recently revoked Plaintiff's IFP status on two separate occasions based in part on his failure to demonstrate that he met the imminent-danger exception. See Walker v. Perry, 2022 WL 8176157, at *7; Walker v. Hunt, No. 1:19-cv-246-LG-RPM, 2022 WL 16921823, at *2-3 (S.D.Miss. Nov. 14, 2022). Plaintiff's litigation tactics have not been confined to the federal courts. A state circuit judge reviewing Plaintiff's convictions for attempt to utter forgery noted that Plaintiff's “repetitive filings have caused ‘waste of [the circuit court's] personnel, materials, and time.'” Walker v. State of Miss., 35 So.3d 555, 560 (Miss. Ct. App. 2010).
In Walker v. Hunt, the undersigned outlined many of Plaintiff's shenanigans and the frauds committed upon various courts by Plaintiff over the years. See Walker v. Hunt, 2022 WL 17484273, at *2-5. As a result of his vexatious and fraudulent litigation, U.S. District Judge Louis Guirola, Jr. ultimately sanctioned Plaintiff such that he is not permitted to file any future complaints or civil pleadings in the Southern District of Mississippi without obtaining advance written permission from a district or magistrate judge. See Walker v. Hunt, 2022 WL 16921823, at *4. U.S. District Judge Halil S. Ozerden entered a similar sanction in another of Plaintiff's lawsuits. Walker v. Perry, 2022 WL 8176157, at *9. Plaintiff filed the instant lawsuit prior to the district judges' prospective sanction.
At issue in the instant case is whether Plaintiff was under imminent danger of serious physical injury at the time he filed his complaint and request to proceed in forma pauperis. See Banos v. O'Guin, 144 F.3d 883, 884-85 (5th Cir. 1998). Plaintiff's bare allegations would suggest that, at that time, he was being raped on a daily basis by gang members, prison guards, and prison administrators at CMCF. Given Plaintiff's litigation history, the undersigned required corroborating proof of his imminent-danger claims. At the hearing on February 7, 2022, Plaintiff discussed in great detail medical care claims that are simply not part of the instant litigation. For example, he discussed what he alleges is inadequate medical care for non-Hodgkin's lymphoma[1], gender dysphoria, and cardiomyopathy. With respect to the rape claims, Plaintiff generally made vague and nonspecific allegations of rape or sexual assault at CMCF. The Court then gave Plaintiff an opportunity to submit corroborating affidavits or documentary evidence to support the assertion that he was under imminent danger of serious physical injury at the time he filed his complaint in June 2020.
In his response, Plaintiff raised the following arguments: (1) U.S. District Judge Ozerden previously granted Plaintiff's IFP motion finding that he met the exception to the three-strikes bar; therefore, a U.S. Magistrate Judge cannot overrule the district judge's finding; (2) the motion to revoke IFP is untimely; and (3) Defendants have failed to meet their burden of proving that Plaintiff is not in imminent danger or that his allegations of imminent danger are false or otherwise unreliable. With respect to Plaintiff's first two arguments, § 1915(e)(2) provides that the court shall dismiss “at any time” a lawsuit brought pursuant to the in forma pauperis statute if the court determines that the action is “frivolous or malicious” or “fails to state a claim on which relief may be granted”. The IFP statute allows the Court to revisit and reexamine “at any time” whether IFP status was improvidently granted. See Treff v. Galetka, 74 F.3d 191, 197 (10th Cir. 1996) (“Leave to proceed [in forma pauperis] is a privilege, not a right[,] courts have the discretion to revoke that privilege when it no longer serves its goals”) (citation omitted); Davis v. Hernandez, No. 3:12-CV-2013-L-BN, 2016 WL 335442, at *2 (N.D. Tex. Jan. 5, 2016). Moreover, the undersigned U.S. Magistrate Judge's order regarding Plaintiff's IFP status is being submitted to U.S. District Judge Ozerden in the form of a report and recommendation. Thus, Judge Ozerden will have the final say on whether IFP status should be revoked. The undersigned rejects Plaintiff's arguments regarding the timing of consideration of the three-strikes bar.
With respect to Plaintiff's arguments about the burden of proof, it is Plaintiff who bears the burden of establishing the existence of an imminent danger at the time of filing. See Newman v. Harris, 770 Fed.Appx. 216, 217 (5th Cir. 2019); Banos, 144 F.3d at 884-85. To meet his burden, Plaintiff must allege specific facts demonstrating an ongoing serious physical injury, or a pattern of misconduct that is likely to cause imminent, serious physical injury. Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). Vague or conclusory allegations are insufficient to meet Plaintiff's burden. White v. Colorado, 157 F.3d 1226, 1231-32 (10th Cir. 1998); Smith v. Dir., Texas Dep't of Criminal Justice, Corr. Institutions Div., 258 Fed.Appx. 632 (5th Cir. 2007). As will be discussed more fully below, Plaintiff's allegations of imminent danger are unreliable and uncorroborated; therefore, the undersigned recommends revoking his IFP status.
As evidentiary support of his imminent-danger claim, Plaintiff provided the following documents: (1) an ARP signed by Plaintiff and dated October 12, 2020, alleging that he has not been interviewed regarding a PREA issue (Doc. [47-1] at 1); (2) a letter from Correctional Deputy Warden Joann H Shivers acknowledging receipt of Plaintiff's “correspondence concerning several organization members assaulting you and taking your fan and clothing” (id. at 6); (3) an affidavit of inmate Timothy Allen McCoy dated September 3, 2020; alleging that he has seen other inmates and staff sexually assault Plaintiff (id. at 7); (4) an incident report dated March 10, 2017, reporting that Plaintiff submitted an ARP that inmates extorted his mo...
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