Luginbyhl v. Red Rock Corrections Center et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
LEVI LUGINBYHL, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. CIV-26-609-JD
)
RED ROCK CORRECTIONS 	)
CENTER et al., 	)
)
Defendants. 	)
REPORT AND RECOMMENDATION
Levi Luginbyhl, a state prisoner appearing pro se, seeks relief under 42
U.S.C. § 1983. Doc. 1.1 United States District Judge Jodi W. Dishman referred
this matter to the undersigned Magistrate Judge for initial proceedings under
28 U.S.C. § 636(b)(1)(B), (C). Doc. 5.
Plaintiff claims a prison chaplain denied him the right to freely exercise
his religion. Doc. 1, at 6-7. He seeks equitable relief and monetary damages.
Id. at 7, 12.
Plaintiff has also moved for leave to proceed in forma pauperis (IFP).
Doc. 2. But Plaintiff has incurred at least three strikes under the Prison
Litigation Reform Act (PLRA) and does not qualify for an exception. See 28
1 	Citations to a court document are to its electronic case filing designation
and pagination. Except for capitalization, quotations are verbatim unless
otherwise indicated.
Case 5:26-cv-00609-JD Document 6 Filed 04/10/26 Page 1 of 7

2
U.S.C. § 1915(g). So the undersigned recommends the Court deny Plaintiff’s
IFP motion and dismiss this action without prejudice unless Plaintiff pays the
entire filing fee within twenty-one days of any order adopting this Report and
Recommendation.
I. 	Analysis.
A. 	The PLRA’s “three strikes” rule.
Prisoners who wish to bring a civil action without prepaying the entire
filing fee are subject to the PLRA’s “three-strikes” rule under 28 U.S.C.
§ 1915(g):
In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under this section if the
prisoner has, on 3 or more prior occasions, while incarcerated or
detained in any facility, brought an action or appeal in a court of
the United States that was dismissed on the grounds that it is
frivolous, malicious, or fails to state a claim upon which relief may
be granted, unless the prisoner is under imminent danger of
serious physical injury.
Congress designed the three-strikes rule “to bring [prisoner] litigation under
control.” Childs v. Miller, 713 F.3d 1262, 1265 (10th Cir. 2013) (quoting
Woodford v. Ngo, 548 U.S. 81, 84 (2006)). “Under the PLRA, prisoners obtain
a ‘strike’ against them for purposes of future [IFP] eligibility when their ‘action
or appeal in a court of the United States . . . was dismissed on the grounds that
it is frivolous, malicious, or fails to state a claim upon which relief may be
Case 5:26-cv-00609-JD Document 6 Filed 04/10/26 Page 2 of 7

3
granted.”’ Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172, 1176 (10th Cir. 2011)
(quoting 28 U.S.C. § 1915(g)), abrogated on other grounds by, Coleman v.
Tollefson, 575 U.S. 532, 537 (2015). “When a prisoner has accumulated three
strikes, he has ‘struck out’ from proceeding IFP in a new civil action or appeal.”
Strope v. Cummings, 653 F.3d 1271, 1273 (10th Cir. 2011) (quoting Smith v.
Veterans Admin., 636 F.3d 1306, 1308 (10th Cir. 2011)).
Congress did not bar a prisoner with three strikes from filing new civil
actions but did eliminate a three-striker’s privilege of proceeding IFP “unless
the prisoner is under imminent danger of serious physical injury.” 28 U.S.C.
§ 1915(g). “To meet the only exception to the prepayment requirement, a
prisoner who has accrued three strikes must make specific, credible allegations
of imminent danger.” Hafed, 635 F.3d at 1176 (internal quotation marks
omitted). Absent imminent physical danger, a prisoner with three strikes must
“prepay the entire filing fee before federal courts may consider their civil
actions and appeals.” Childs, 713 F.3d at 1265. A court “may raise the issue of
strikes sua sponte.” Strope, 653 F.3d at 1273.
B. 	Plaintiff’s strikes.
Plaintiff had accumulated more than three strikes before he initiated
this lawsuit. Some of these strikes include:
Case 5:26-cv-00609-JD Document 6 Filed 04/10/26 Page 3 of 7

4
• 	Luginbyhl v. Am. Corr. Assoc. Unknown Members, No. 03-
CV-3364-AW (D. Md. Dec. 18, 2003) (complaint dismissed);2
• 	Luginbyhl v. David L. Moss Crim. Just. Ctr., No. 07-CV-162-
TCK (N.D. Okla. Aug. 6, 2007) (dismissed for failure to state
a claim);
• 	Luginbyhl v. McMurray, No. 07-CV-121-Y (N.D. Tex. Mar.
26, 2007) (dismissed as frivolous or malicious and for failure
to state a claim);
• 	Luginbyhl Hawkins v. United States, 2011 WL 6009651, at
*5 (N.D. Okla. Dec. 1, 2011) (dismissed for failure to state a
claim and flagged as a third strike);
• 	Luginbhyl Hawkins v. United States, 465 F. App’x 808, 810-
11, 2012 WL 1524069, at *1 (10th Cir. May 2, 2012) (appeal
dismissed as “frivolous”);3
• 	Luginbyhl v. Astrue, No. CIV-23-1106-SLP, (W.D. Okla. Jan.
23, 2024) (dismissed for lack of subject matter jurisdiction
and failure to state a claim under Fed. R. Civ. P. 8), appeal
dismissed, No. 24-6082 (10th Cir. May 28, 2024);
• 	Luginbyhl v. Lawton Corr. Rehab. Ctr., No. CIV-23-939-JD
(W.D. Okla. Nov. 11, 2025) (dismissed for failure to submit a
complaint 	that 	complied 	with 	the 	federal 	rules 	of 	civil
procedure) (no appeal filed).
2 	“It is irrelevant under § 1915(g) whether the district court affirmatively
stated in the order of dismissal that it was assessing a strike.” Smith, 636 F.3d
at 1313.
3 	An unsuccessful appeal of a case dismissed for failure to state a claim or
as frivolous also counts as a strike for purposes of 28 U.S.C. § 1915(g). See
Jennings v. Natrona Cnty. Det. Ctr. Med. Facility, 175 F.3d 775, 780 (10th Cir.
1999) (“If we dismiss as frivolous the appeal of an action the district court
dismissed under 28 U.S.C. § 1915(e)(2)(B), both dismissals count as strikes.”),
overruled in part on other grounds by, Coleman, 575 U.S. at 539; see also Dopp
v. 	Loring, 	245 	F. 	App’x 	842, 	851 	(10th 	Cir. 	Aug. 	30, 	2007) 	(“Dopp 	has
accumulated two strikes in this matter—one for the dismissal of this appeal
and one for the district court’s dismissal.”).
Case 5:26-cv-00609-JD Document 6 Filed 04/10/26 Page 4 of 7

5
C. 	Plaintiff does not satisfy the imminent-danger exception.
Having accumulated these strikes, the Court cannot grant Plaintiff IFP
status unless he is “under imminent danger of serious physical injury.” 28
U.S.C. § 1915(g). To satisfy this exception, a prisoner is “required to make
‘specific, credible allegations of imminent danger of serious physical harm.’”
Hafed, 635 F.3d at 1179 (quoting Kinnell v. Graves, 265 F.3d 1125, 1127-28
(10th Cir. 2001)). “Every circuit to have decided the issue so far has concluded
that [§ 1915(g)’s] use of the present tense shows that a prisoner must have
alleged an imminent danger at the time he filed his complaint.” Id.; see, e.g.,
Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003) (“Allegations of past
harm do not suffice; the harm must be imminent or occurring at the time the
complaint is filed.”). Plaintiff must also show there is “a nexus between the
imminent danger” alleged “and the legal claims asserted.” See Lomax v. Ortiz-
Marquez, 754 F. App’x 756, 759 (10th Cir. 2018) (quoting Pettus v. Morgenthau,
554 F.3d 293, 297 (2d Cir. 2009)); see also Boles v. Colo. Dep’t of Corr., 794 F.
App’x 767, 770 (10th Cir. 2019) (“Determining if a sufficient nexus exists
involves considering ‘whether the imminent danger of serious physical injury’
alleged is ‘fairly traceable to unlawful conduct asserted in the complaint’ or
Case 5:26-cv-00609-JD Document 6 Filed 04/10/26 Page 5 of 7

6
appeal and ‘whether a favorable judicial outcome would redress that injury.’”
(quoting Lomax, 754 F. App’x at 759)).
Plaintiff does not submit any information either in his IFP motion or his
complaint related to the imminent danger of serious physical injury. Docs. 1,
2.4 So Plaintiff does not qualify for the imminent-danger exception to the three-
strikes rule.
II. 	Recommendation and notice of right to object.
For the reasons stated, the undersigned recommends the Court deny
Plaintiff’s IFP motion. Doc. 2. The undersigned further recommends the Court
dismiss this action unless Plaintiff pays the entire filing fee within twenty-one
days of any order adopting this Report and Recommendation.
The undersigned advises Plaintiff of his right to file an objection to this
Report and Recommendation with the Clerk of this Court on or before May 1,
2026, in accordance with 28 U.S.C. § 636(b)(1) and Federal Rule of Civil
Procedure 72(b)(2). The undersigned further advises Plaintiff that failure to
make a timely objection to this report and recommendation waives the right to
4 	“Although a prisoner should advance his allegations of imminent danger
in his IFP motion, courts may also look to other filings as well.” Boles, 794 F.
App’x at 770.
Case 5:26-cv-00609-JD Document 6 Filed 04/10/26 Page 6 of 7

7
appellate review of both factual and legal questions contained herein. See
Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the
undersigned Magistrate Judge in this matter.
ENTERED this 10th day of April, 2026.
Case 5:26-cv-00609-JD Document 6 Filed 04/10/26 Page 7 of 7