Gilbert-Mitchell v. Allred et al
Filing
61
ORDER Adopting and Affirming 49 Report and Recommendations and denying 9 Motion for Temporary Restraining Order and Preliminary Injunction by Judge Christine M. Arguello on 3/22/13.(dkals, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 12-cv-01997-CMA-MJW
WALLACE GILBERT-MITCHELL, JR.,
Plaintiff,
v.
DAVID V. ALLRED, in his personal and professional capacities,
H. NEWCOMB, in his personal and professional capacities,
MS. INOUYE, in her personal and professional capacities,
CHARLIE A. DANIELS, in his personal and professional capacities,
J. RODRIGUES, in his personal and professional capacities,
ROBERT LEGGITT, in his personal and professional capacities,
THERESA MONTOYA, in her personal and professional capacities,
MS. McDERMOTT, in her personal and professional capacities,
THE UNITED STATES OF AMERICA, in tort,
Defendants.
ORDER ADOPTING AND AFFIRMING FEBRUARY 28, 2013
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on the February 28, 2013 Recommendation
of United States Magistrate Judge Michael J. Watanabe. (Doc. # 49.) In his
Recommendation, the Magistrate Judge recommends that Plaintiff’s Motion for
Temporary Restraining Order and Preliminary Injunction (Doc. # 9) be denied without
prejudice pending determination of whether Plaintiff may proceed in forma pauperis.
On February 26, 2013, the Federal Bureau of Prisons (“BOP”) filed a motion
seeking reconsideration of an order (Doc. # 4) granting Plaintiff leave to proceed
in forma pauperis under 28 U.S.C. § 1915. (Doc. # 46.) In the BOP’s motion, the BOP
asserts that Plaintiff had failed to inform the Court of his three strikes status, which
would preclude him from filing a lawsuit in forma pauperis. The BOP attached several
court orders indicating that Plaintiff has three strikes against him. (Doc. ## 46-2; 46-4;
46-5; 46-6.) As the Magistrate Judge found, there is a genuine issue as to whether
Plaintiff may proceed in forma pauperis. Thus, the Magistrate Judge recommended that
Plaintiff’s Motion for Temporary Restraining Order and Preliminary Injunction be denied
without prejudice until such time as the Court makes a determination as to whether
Plaintiff may proceed in forma pauperis.
On March 13, 2013, Plaintiff, proceeding pro se,1 filed timely objections to the
Recommendation. (Doc. # 50.) This Court has conducted a de novo review of this
matter, including carefully reviewing all relevant pleadings, the Recommendation,
and Plaintiff’s Objections to the Recommendation. In his Objections, Plaintiff correctly
observes that a prisoner with three strikes may proceed in forma pauperis when “the
prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).
Thus, despite his apparent three strikes status, Plaintiff may be permitted to proceed
1
Because Plaintiff is proceeding pro se, the Court “review[s] his pleadings and other
papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys.”
Trackwell v. U.S. Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007) (citing Haines v. Kerner, 404
U.S. 519, 520 (1972)).
2
in forma pauperis if the Court deems that he is “under imminent danger of serious
physical injury.” Id. However, this is a threshold matter that should be determined
before deciding whether an injunction should issue. Thus, the Court agrees with the
Magistrate Judge that Plaintiff’s Motion should be denied without prejudice until such
time as the Court determines whether Plaintiff may proceed in forma pauperis.
Based on the Court’s de novo review, the Court concludes that Magistrate
Judge Watanabe’s Recommendation is correct. Therefore, Plaintiff’s Objections are
OVERRULED and the Court hereby ADOPTS the Recommendation of the United
States Magistrate Judge as the findings and conclusions of this Court.
Accordingly, it is ORDERED THAT Plaintiff’s Motion for Temporary Restraining
Order and Preliminary Injunction (Doc. # 9) is DENIED.
DATED: March
22
, 2013
BY THE COURT:
_______________________________
CHRISTINE M. ARGUELLO
United States District Judge
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