Cotner v. United States

In the United States Court of Federal Claims
No. 18~1726C
(Filed: November 29, 2018)
(NOT T() BE PUBLISHED)
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ROBERT E. COTNER, )
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Plaintiff, )
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v. )
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UNITED STATES, )
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Defendant. )
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Robert Cotner, pro se, Lexington, Oklahorna.
OPINION AND ORDER
LETTOW, Senior Judge.
Pending before the court is plaintiff’s motion to proceed informal pauperis The United
States’ (“the government’s”) response to this motion is overdue.
BACKGROUND
Mr. Cotner is currently incarcerated Over time, he has been convicted of a number of
crimes, including, among others, “(l) possession of a controlled drug with intent to distribute,
after former conviction of one drug related felony; (2) possession of marijuana with intent to
distribute, after former conviction of one drug related felony; (3) failure to affix a tax stamp,
after former conviction of two felonies; (4) Weapon use in the commission of a crime, after
former conviction of two felonies; (5) manufacturing a fictitious drivers license, after former
conviction of two felonies; and (6) manufacturing a fictitious birth certificate.” Comer v. Cooly,
No. 96-5269, 1998 WL 4336, at *l (lOth Cir. Jan. 8, 1998). For the foregoing set of convictions
in 1992, he Was sentenced to four life scntences, a twenty-year sentence, and a thirty-day
sentence. Ici.
STANDARDS FOR DECISION
The Prison Reform Act of 1996 limits the ability of incarcerated persons With a history of
filing frivolous lawsuits from proceeding informal pauperis See 28 U.S.C. § 1915(g)', see also
Cotner v, United Siates, No. 13-407C, 2013 WL 6139791, at *l (Fed. Cl. Nov. 22, 2013).
“[C}ommonly referred to as the ‘three strikes’ provision, [the Prison Litigation Reforrn Act of
1996] prohibits an incarcerated person from proceeding in forma pauperis when that individual
has filed three or more actions or appeals Which were dismissed as ‘frivilous, malicious, or
fail[ing] to state a claim upon Which relief may be granted.”’ Cotner, 2013 WL 6139791, at *1
(quoting 28 U.S.C. § l915(g)). There is an exception, however, for “prisoners under ‘irnminent
danger of serious physical injury.’” Id. (quoting 28 U.S.C. § 1915(g)). Thus, for an incarcerated
frivolous litigator to be permitted to proceed irc forma pauperis, they must allege sufficient facts
in their complaint that demonstrate they are under “imminent danger of serious physical injury.”
ANALYSIS
l\/[r. Cotner’s history shows a litany of frivolous actions While incarcerated, including
several filed with this court. See, e.g., Cotner, 2013 WL 6139791, at *1; see oiso, e.g., Duvoll v.
United Sio'ies, No. 18-313C, 2018 WL 2676671 (Fed. Cl. June 5, 2018) (showing Robert Cotner
as one of the plaintiffs); 1 Duvall v. United States, No. 17-1788€, 2018 WL 617641 (Fed, Cl. Jan.
30, 2018) (same); Cotner v. Oklohoma, No. 15-1236€, 2016 WL 206098 (Fed. Cl. Jan. 14,
2016); Cotner v. McCollum, No. CIV-12-1398-M, 20§3 WL 1773582 (W.D. Okia. Apr. 25,
2013); Cotner v. F.B.I., No. 09-4229, 2009 WL 3335063 (D.N.J. Oct. 15, 2009); Cotner v.
Campi)eil, 618 F. Supp. 1091, 1097 (E.D. Okla. 1985), aj”’d iri relevant pari sub-nom Cotner v.
Hopkirls, 795 F.Zd 900 (10th Cir. 1986).
The Tenth Circuit found that by 2002, “Mr. Cotner has filed at least forty-eight frivolous
and repetitive suits in Oklahoma.” Cotner vi Boone, 48 Fed. Appx. 287, 287 (l Uth Cir. 2002).
To combat Mr. Cotner’s frivolous filings, the Tenth Circuit in Boorze held that Mr. Cotner must
follow a series of steps if he wished to proceed in a civil suit in that court. Id. at 290-91. Other
courts have placed similar constraints on l\/lr. Cotner’s ability to file suit. See, e.g., Cotner vi
Beor, No. CIV-18-398-1\/1, 2018 WL 2453022, at *1 (E,D. Ol530 U.S.
1271 (2000).
lln this case, resolved earlier this year by another judge of this court, several post-
judgment meritless submissions were received from the plaintiffs, prompting the court to order
that the Clerl< Was “directed to accept no further filings iri this case by Kenneth Duvali, Robert
Cotner, or Dennis Martin, Without an [o]rder granting leave to [submit] such filings from the
Chief Judge of the Court of Federal Claims.” Duvall v. United Stotes, No. 18-313, Order of June
28, 2018, ECF No. 17 (emphasis added).
Mr. Cotner manifestly is subject to the “three-strike” provision of 28 U.S.C. § 1915(g)).
His numerous frivolous lawsuits while incarcerated over the last few decades exceed the “three
strikes” proscribed by the Prison litigation Reform Act of 1996. Thus, to proceed in forma
pauperis, Mr. Cotner must have alleged facts that indicate he is in imminent danger of serious
physical harm. l\/Ir. Cotner fails this burden. Mr. Cotner’s complaint vaguely alleges a
government conspiracy regarding a vast payment owed to him and Cotner Enterprises for past
services rendered But, much like prior litigation, Mr. Cotner’s complaint contains no
allegations of fact that could plausibly suggest he is in imminent danger of serious physical
harm.
Therefore, the court determines l\/lr. Cotner is unable to proceed informal pauperis and
must pay the filing fee required by the court if he wishes to proceed with his suit against the
United States.
CONCLUSION
For the reasons stated, Mr. Cotner’s motion for leave to proceed in forma pauperis is
DENIED. Accordingly, Mr. Cotner SHALL SUBl\/IIT to the Cierk of the United States Court of
Federal Clairns, by December 14, 2018, the $400 fee for filing his complaint lf l\/[r. Cotner fails
to submit the requisite filing fee, the Clerk is directed to dismiss this matter without prejudice
Charlesv 15. 'L'ettow
Senior Judge
lt is so ORDERED.