Luginbyhl v. Oklahoma Supreme Court et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
LEVI MCRAE LUGINBYHL, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. CIV-26-01938-JD
)
OKLAHOMA SUPREME COURT, et al., 	)
)
Defendants. 	)
ORDER
Before the Court is United States Magistrate Judge Chris M. Stephens’s Report
and Recommendation (“R. & R.”) [Doc. No. 10], to which Plaintiff Levi McRae
Luginbyhl (“Plaintiff”) did not file objections. As discussed below, the Court accepts and
adopts the R. & R.
Plaintiff, proceeding pro se, filed this case seeking relief under 42 U.S.C. § 1983.
[Doc. No. 1]. The Court referred this action to Judge Stephens for preliminary
proceedings under 28 U.S.C. § 636(b)(1)(B) and (C). [Doc. No. 4].
The R. & R. recommends denying Plaintiff’s Application for Leave to Proceed In
Forma Pauperis [Doc. No. 8] and dismissing the action without prejudice if Plaintiff does
not pay the $405.00 filing fee in full to the Clerk of Court within 21 days of this order.
[Doc. No. 10 at 6]. The R. & R. based its recommendation upon Plaintiff’s accumulation
of three strikes under the Prison Litigation Reform Act’s three strikes provision and that
Plaintiff does not satisfy the imminent-danger exception to that provision. [Id. at 2–6].
The R. & R. advised Plaintiff of his right to object by September 30, 2026, and warned
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that failure to file a timely objection would waive the right to appellate review of the
factual and legal issues in the R. & R. [Id. at 6 (citing Moore v. United States, 950 F.2d
656, 659 (10th Cir. 1991))]. Plaintiff did not file an objection.
“[A] party’s objections to the magistrate judge’s report and recommendation must
be both timely and specific to preserve an issue for de novo review by the district court or
for appellate review.” United States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir.
1996). By not objecting to a magistrate judge’s report and recommendation, a party
waives his right to challenge the legal and factual basis for the magistrate judge’s
decision. See Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (holding that
the plaintiffs “waived their right to appeal the magistrate’s ruling” because they did not
file any objections); Moore, 950 F.2d at 659 (“Our waiver rule provides that the failure to
make timely objection to the magistrate’s findings or recommendations waives appellate
review of both factual and legal questions.”).
Plaintiff did not file an objection to the R. & R. by the deadline and thus waived
his right to challenge the recommended disposition. “The waiver rule as a procedural bar
need not be applied when the interests of justice so dictate.” Moore, 950 F.2d at 659.
However, considering the factors, the interests of justice do not warrant an exception to
the waiver rule in this case. See Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir.
2010) (explaining that the court may grant relief from the waiver rule for failure to timely
object to the magistrate judge’s report and recommendation in the “interests of justice”
by considering factors such as a pro se litigant’s effort to comply, the force and
plausibility of the explanation for the party’s failure to comply, and the importance of the
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issues raised).
Although Plaintiff did not file an objection to the R. & R., Plaintiff did file a
constitutional challenge to the Prison Litigation Reform Act, specifically to the three
strikes rule, discussed above. [Doc. No. 13]. The Court does not view the constitutional
challenge as an objection to the R. & R. because it does not raise factual or legal error
committed by the R. & R. Plaintiff does not assert that the R. & R. improperly applied the
three strikes rule but instead challenges the constitutionality of that rule. However, even
if the Court were to liberally construe the constitutional challenge as objections to the R.
& R., the Court notes that the constitutional challenge is not properly before the Court
because Plaintiff has not complied with Federal Rule of Civil Procedure 5.1, which
governs procedures a party must follow when challenging the constitutionality of a
statute.
The Court also notes that Plaintiff filed another application to proceed in forma
pauperis after the R. & R. was issued. [Doc. No. 12]. However, the Court denies that
application for the same reasons announced in the R. & R. [See Doc. No. 10 at 2–6].
“Before initiating this lawsuit, Plaintiff had accumulated at least three strikes under the
PLRA from prior federal civil suits.” [Id. at 2 (citing Luginbyhl v. Red Rock Corr. Ctr.,
No. 26-6091, Order at 2 (10th Cir. June 18, 2026))]. Nor does Plaintiff’s application
identify a basis for the application of the imminent harm exception. “To satisfy the
imminent-danger exception, a prisoner is ‘required to make specific, credible allegations
of imminent danger of serious physical harm’ and ‘must have alleged an imminent
danger at the time he filed his complaint.’” [Id. at 2–3 (quoting Hafed v. Fed. Bureau of
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Prisons, 635 F.3d 1172, 1179 (10th Cir. 2011), abrogated on other grounds by Coleman
v. Tollefson, 575 U.S. 532, 534 (2015))]. Here, Plaintiff makes only conclusory
allegations that he was in imminent danger at the time he filed his complaint, which are
insufficient to satisfy the exception. See Hafed, 635 F.3d at 1180. [See Doc. No. 12 at 2].
Accordingly, for the above reasons, the Court ACCEPTS and ADOPTS the R. &
R. [Doc. No. 10]. The Court, therefore, DENIES Plaintiff’s Application for Leave to
Proceed In Forma Pauperis. [Doc. No. 8]. The Court will dismiss this action without
prejudice if Plaintiff does not pay the $405.00 filing fee in full to the Clerk of the Court
within 21 days of this Order, or by November 3, 2026. See LCvR3.3(e).
Additionally, the Court DENIES Plaintiff’s second application to proceed in forma
pauperis. [Doc. No. 12]. The Court also concludes that Plaintiff’s constitutional challenge
is not properly before the Court because Plaintiff has failed to comply with Federal Rule
of Civil Procedure 5.1. [Doc. No. 13].
IT IS SO ORDERED this 13th day of October 2026.
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