United States District Court, D. Kansas
DONALD L. COHEE, Plaintiff,
AMANDA WOOD, et al., Defendants.
SECOND ORDER TO SHOW CAUSE
D. Crabtree United States District Judge.
15, 2017, the court issued a show cause order to plaintiff
Donald L. Cohee. Doc. 32. The Order explained that 28 U.S.C.
§ 1915(g) requires Mr. Cohee to pay the filing fee in
the case because he is a three-strikes litigant. The Order
directed Mr. Cohee either to: (1) pay the required filing
fee; or (2) show good cause why the court should not dismiss
his lawsuit for failing to pay the filing fee.
Cohee has submitted a response to the Show Cause Order. Doc.
35. It fails to show good cause why the court should not
dismiss this lawsuit because Mr. Cohee has failed to pay the
required filing fee. First, Mr. Cohee asserts that he cannot
pay the filing fee. He directs the court to his inmate
account statement that shows that he does not have the funds
to pay the fee.But, his inability to pay the fee does not
change the analysis under § 1915(g). See Dubuc v.
Johnson, 314 F.3d 1205, 1209 (10th Cir. 2003) (after
holding that “there is no question that § 1915(g)
is constitutional[, ]” the Circuit recognized the
“potential danger” of the statute because it can
“prevent a prisoner who has filed three or more
frivolous actions from litigating a meritorious
constitutional claim until that prisoner can pay the
appropriate filing fees” but “this is the
consequence of Congress' choice” in enacting §
1915(g)). Section 1915(g) does not prohibit Mr. Cohee from
filing this lawsuit, but as a three-strikes litigant, the
statute requires him to “prepay all applicable filing
fees” before the suit can proceed. Id.
Mr. Cohee asserts that “the three-strikes doesn't
matter at all” because the earlier cases were “in
a state court.” Doc. 35 at 1. That is just wrong. The
court explained in its Show Cause Order that the three
strikes against Mr. Cohee come from dismissals of two cases
in the Northern District of Indiana and one case in our
court. Doc. 32 at 2-3. Mr. Cohee has not shown that the court
erred in its conclusion that he is a three-strikes litigant
under § 1915(g).
Mr. Cohee asserts that defendants' actions have caused
him to “black out.” Doc. 35 at 1. The court
recognizes that § 1915(g) provides an exception to the
filing fee requirement when “the prisoner is under
imminent danger of serious physical injury.” 28 U.S.C.
§ 1915(g). But Mr. Cohee's claims never allege that
he is under imminent danger of serious physical injury. Mr.
Cohee's two Complaints assert claims under 42 U.S.C.
§ 1983, alleging that defendants violated his
constitutional rights by preventing him from seeing his
daughter and finding employment. Docs. 1, 3. Mr. Cohee's
claim that he has experienced “black outs” from
these actions does not establish that he is “under
imminent danger of serious physical injury, ” as 28
U.S.C. § 1915(g) requires, to avoid applying the
Mr. Cohee asks that I remove myself from this lawsuit because
I sentenced Mr. Cohee to prison in a separate criminal case.
Mr. Cohee asserts that I am not impartial in this matter, but
he provides no facts to support this assertion, other than my
involvement in his underlying conviction. The court construes
Mr. Cohee's request as a motion for recusal under 28
U.S.C. § 455. Doc. 76. Under § 455, a judge must
disqualify himself “in any proceeding in which his
impartiality might reasonably be questioned, ” or
“[w]here he has a personal bias or prejudice concerning
a party . . . .” 28 U.S.C. § 455(a) & (b)(1).
The test for determining impartiality is an objective one,
based on a judge's “outward manifestations and
reasonable inferences drawn therefrom.” Nichols v.
Alley, 71 F.3d 347, 351 (10th Cir. 1995) (citation
omitted). Mr. Cohee asserts no facts to support recusal under
this standard. He fails to allege any facts demonstrating
that I have a personal bias or prejudice against him or that
a reasonable person might reasonably question my
impartiality. To the extent Mr. Cohee is dissatisfied with
the outcome in his criminal case, adverse rulings are no
reason for recusal. See Green v. Branson, 108 F.3d
1296, 1305 (10th Cir. 1997) (stating that “adverse
rulings ‘cannot in themselves form the appropriate
grounds for disqualification'” (quoting Green
v. Dorrell, 969 F.2d 915, 919 (10th Cir. 1992))).
Mr. Cohee has not shown good cause why § 1915(g) does
not apply here. Mr. Cohee is a three-strikes litigant, and
§ 1915(g) requires him pay the filing fee to proceed
with this lawsuit. Although the court already has ordered Mr.
Cohee to pay the filing fee, it will give him one, final
opportunity to do so. The court thus orders Mr. Cohee to pay
the filing fee, on or before July 15, 2017. If he does not
pay the filing fee by that date, the court will dismiss his
lawsuit without prejudice.
THEREFORE ORDERED BY THE COURT THAT plaintiff Donald L. Cohee
must pay the $400 filing fee, on or before July 15, 2017. If
Mr. Cohee does not pay the filing fee by that date, the court
will dismiss this lawsuit without prejudice.
 Mr. Cohee states in his response that
he is “putting a copy of his account with this
motion” but none was attached. Doc. 35 at 1. The court
notes that Mr. Cohee filed a statement of his account in
April 2016 (Doc. 4). It shows insufficient funds to pay the
filing fee. Even though that account information is not
current, it doesn't matter for purposes of this Order.