United States District Court, D. Kansas
BENNY R. SMITH, Plaintiff,
SAM CLINE, et al., Defendants.
MEMORANDUM AND ORDER
CROW U.S. SENIOR DISTRICT JUDGE.
a prisoner in state custody, brings a civil rights complaint
under 42 U.S.C. § 1983 in which he alleges that the
defendant prison officials have spiked his meals with unknown
chemicals, allowed other prisoners to taunt and touch him,
and have subjected him to retaliation, violation of
“Mandela Rules”, unlawful censorship, failure to
protect, false convictions, conversion, and attempted
first-degree murder (Doc. #1, pp. 1-39). He seeks injunctive
relief barring prison officials from censoring his telephone
calls and outgoing correspondence and other relief.
proceeds pro se and seeks leave to proceed in forma pauperis
under 28 U.S.C. § 1915.
Prison Litigation Reform Act substantially changed the manner
in which indigent prisons may proceed in the United States
District Courts. In particular, Section 1915 now provides:
“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
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.” 28 U.S.C. § 1915(g).
records from the District of Kansas reflect that plaintiff
has filed at least ten cases in this court and that at least
three of those cases, or related appeals, were dismissed on
grounds qualifying as a strike under §
Court has carefully reviewed the complaint and the
supplemental materials submitted by the plaintiff. While
these documents suggest that plaintiff has health concerns,
it does not appear that he is in immediate danger of serious
injury. First, it is clear that plaintiff receives medical
attention. See Doc. #1, Attach., p. 14, 10/20/2017
response regarding complaints of poisoned food and other
concerns, describing monthly special needs services and
weekly behavioral health contacts). In addition, many of the
incidents described in the complaint and attachments occurred
months before plaintiff commenced this action. See, e.g.,
id., p. 17, 4/8/09 grievance response regarding medical
complaint, described testing and treatment plans but noting
plaintiff's refusal to undergo recommended procedure, and
p. 33, 8/1/2017 disciplinary report describing
plaintiff's refusal to move to another cell and
requesting protective custody. On the present record,
plaintiff has not met the criterion of imminent danger of
serious injury that would allow him to proceed in forma
pauperis. The Court will deny the motion to proceed in forma
pauperis and must require plaintiff to pay the full filing
also moves for the appointment of counsel (Doc. #5). As a
party to a civil action, plaintiff has no constitutional
right to the appointment of counsel. Durre v.
Dempsey, 869 F.2d 543, 547 (10th Cir. 1989).
Rather, the Court has discretion to appoint counsel and must
consider factors including “the merits of the
litigant's claims, the nature of the factual issues
raised in the claims, the litigant's ability to present
his claims, and the complexity of the legal issues raised by
the claims.” Rucks v. Boergermann, 57 F.3d
978, 979 (10th Cir. 1995)(internal citations and
quotations omitted). It is not enough “that having
counsel appointed would have assisted [the plaintiff] in
presenting his strongest possible case, [as] the same could
be said in any case.” Steffey, 461 F.3d 1218,
1223 (10th Cir. 2006).
point, the Court has not yet determined whether
plaintiff's claims may proceed. The Court therefore will
deny the request without prejudice.
also seeks a file-stamped copy of all of the pleadings in
this matter (Doc. #7). This matter has been electronically
filed, and plaintiff is issued a notice of electronic filing
upon the entry of each pleading on the Court's docket.
Because plaintiff has shown no need a file-stamped copy of
each pleading, it will deny the motion but will direct the
clerk of the court to transmit a copy of the docket sheet to
THEREFORE, BY THE COURT ORDERED plaintiff's motion for
leave to proceed in forma pauperis (Doc. #2) is denied.
Plaintiff is granted to and including March 16, 2018, to
submit the $400.00 filing fee in this matter.
FURTHER ORDERED plaintiff's motion to appoint counsel
(Doc. #5) is denied without prejudice.
FURTHER ORDERED plaintiff's motion for file-stamped copy
(Doc. #7) is denied. The clerk of the court shall transmit a
copy of the docket sheet to plaintiff.