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Plummer v. McDermott

United States District Court, D. Colorado

September 23, 2014

RONALD PLUMMER, Plaintiff,
v.
LISA McDERMOTT, DAVID ALLRED, and BRAD CINK, Defendants.

RECOMMENDATION THAT FEDERAL BUREAU OF PRISONS' MOTION TO RECONSIDER GRANTING PLAINTIFF IN FORMA PAUPERIS STATUS AND MOTION FOR EXTENSION OF TIME BE DENIED (Docket No. 32) and ORDER DENYING DEFENDANTS' MOTION FOR SECOND EXTENSION OF TIME TO RESPOND TO PLAINTIFF'S COMPLAINT (Docket No. 37)

MICHAEL J. WATANABE, Magistrate Judge.

Ronald Plummer has sued Defendants-employees of the Federal Bureau of Prisons ("BOP")-three times in this court in the past year. He has been granted in forma pauperis ("IFP") status all three times (Docket No. 5, for this case). He also sued BOP officials twice in in the U.S. District Court for the Western District of Louisiana. BOP has intervened in this case to ask that Plummer's right to proceed IFP be revoked under 28 U.S.C. § 1915(g). The Court recommends that this motion be denied.

Relatedly, Defendants have moved that their deadline to respond to Plummer's Complaint be extended until the IFP motion is resolved. The Court denies this motion.

Background

The two cases Plummer filed in the Western District of Louisiana were dismissed for being frivolous and failing to state a claim, under 28 U.S.C. § 1915(e)(2) ( see Docket No. 37, Attachments 1 & 2).

The three suits in this District are docketed under Case Numbers 13-cv-00440-CMA-MJW, 13-cv-02613-LTB, and (this case) 14-cv-01203-CMA-MJW. All three cases present substantially identical claims-that BOP employees were deliberately indifferent to Plummer's repeated complaints of pain caused by a hernia, in violation of the Eight Amendment. The relevant procedural histories from those cases are:

• In Case Number 13-cv-00440-CMA-MJW, Senior Judge Lewis T. Babcock dismissed the case as to three out of four defendants for failing to state a claim. The claims against the remaining four defendants-including the three Defendants here-survived the Court's summary review under Local Civil Rule 8.1; later, the Court dismissed those claims for failure to exhaust administrative remedies on the defendants' motion for summary judgment.
• In Case Number 13-cv-02613-LTB, Judge Arguello dismissed the case as duplicative. According to Plummer's response to the Order to Show Cause issued in that case, he had re-filed after exhausting his administrative remedies. Judge Arguello explained that, because the government's motion for summary judgment based on lack of exhaustion plaintiff's remedy in 13-cv-00440 had not been decided, Plummer's remedy was to await the outcome there and then re-file if need be.
• In this case, Case Number 14-cv-01203-CMA-MJW, Plummer has done as Judge Arguello directed him to do-re-file his action now that both (1) he has exhausted administrative remedies, and (2) the first-filed case has been resolved on those grounds.

In light of the foregoing litigation history, BOP moves to revoke Plummer's right to proceed IFP under 28 U.S.C. § 1915(g).

Defendants have not yet responded to Plummer's Complaint in this case. On July 22, 2014, they moved for an extension on the ground that the Department of Justice had not yet authorized representation for them in their individual capacity. The Court granted Defendants' request for a two-month extension. Then, on August 27, 2014, Defendants moved to vacate the scheduling conference on the ground that they intended to raise a defense of qualified immunity. The Court granted the motion, but ordered Defendants, by September 22, 2014, either to file their responsive pleading raising such a defense or to show cause why the scheduling conference should not be re-set. Defendants have not responded to the Court's show cause order, nor yet raised a defense of qualified immunity. Instead, they have moved for a second extension of time-based on the unresolved motion to revoke Plummer's IFP status.

Analysis

I. Plummer Has Not Accrued Three Strikes

The Court notes as a preliminary matter that, although the motion to revoke IFP status was filed by counsel for Defendants, it is captioned as a motion by BOP-an entity that is not a party to this case, as all Defendants are sued in their individual capacity. Nonetheless, the Court finds permissive intervention is appropriate for the limited purpose of resolving Plummer's status under 28 U.S.C. § 1915(g). See Fed.R.Civ.P. 24(b); see also Kane Cnty., Utah v. U.S., 597 F.3d 1129, ...


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