United States District Court, D. Kansas
ALBERT L. BRINKMAN, Plaintiff,
v.
JOE NORWOOD, et al., Defendants.
ORDER
Sam A.
Crow U.S. Senior District Judge
Plaintiff,
a prisoner confined in the Hutchinson Correctional Facility
in Hutchinson, Kansas, filed this pro se civil rights action
pursuant to 42 U.S.C. § 1983. On February 2, 2018, the
Court entered an Order to Show Cause (“OSC”)
(Doc. 13), ordering Plaintiff to show cause why the
dismissals of his prior lawsuits should not prevent him from
proceeding in forma pauperis in this action. Plaintiff has
filed a Response (Doc. 15) to the OSC.
The
Court finds that Plaintiff is subject to the
“three-strikes” provision under 28 U.S.C. §
1915(g). Court records fully establish that Plaintiff
“has, on 3 or more prior occasions, while incarcerated
. . ., 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.” Accordingly, he may proceed in
forma pauperis only if he establishes a threat of imminent
danger of serious physical injury.
“To
meet the only exception to the prepayment requirement, a
prisoner who has accrued three strikes must make
‘specific, credible allegations of imminent danger of
serious physical harm.'” Davis v. GEO Group
Corr., 696 Fed.Appx. 851, 854 (10th Cir. May 23, 2017)
(unpublished) (quoting Hafed v. Fed. Bureau of
Prisons, 635 F.3d 1172, 1179 (10th Cir. 2011)). The
prisoner “should identify at least the general nature
of the serious physical injury he asserts is imminent,
” and “should make a specific reference as to
which of the defendants may have denied him what medication
or treatment for what ailment on what occasion.”
Id. (quoting Hafed, 635 F.3d at 1180).
“Vague and utterly conclusory assertions are
insufficient.” Id. The harm must be imminent
or occurring at the time the complaint is filed,
“allegations of past harm do not suffice.”
Id. (citations omitted).
Plaintiff's
Complaint alleges a failure to accommodate his disabilities,
failure to provide a proper diet, and failure to allow him to
practice his Wiccan religion. Plaintiff argues imminent
danger in his Complaint, by alleging that he is subject to
“assault/battery at any time due to the failure to
accommodate ADA/R.A. needs.” (Doc. 1, at 6.) Plaintiff
alleges past incidents of excessive force, from November 9,
2016 to March 15, 2017, as a result of staff enforcing EDCF
rules which do not allow for front-cuffing and instead
require belly chains. Plaintiff also states that after belly
chains were utilized, he was provided with a “broken
wheelchair” or a restraint chair for transport to the
shower. Plaintiff acknowledges that he was receiving his
medication, but alleges he could not go to medical for
examinations due to the policy requiring belly chains.
The
Court found in the OSC that Plaintiff fails to show that he
is in imminent danger of serious physical injury. His claims
are conclusory and fail to contain “specific, credible
allegations of imminent danger of serious physical
harm.” Although Plaintiff sets forth past incidents
allegedly involving excessive force, allegations of past harm
are insufficient. The Court also found that Plaintiff's
two pending motions for preliminary injunctions (Docs. 11,
12) are based on the alleged denial of Plaintiff's
exercise of his religious freedoms, and do not set forth an
allegation of imminent danger of serious physical injury.
Plaintiff
has now filed a Response (Doc. 13) to the OSC, and has filed
a new Motion for Preliminary Injunction (Doc. 17).
Plaintiff's response claims that because his medical diet
order is not being followed for his daily meals, he could
“bleed, go without food, suffer cramps, and come into
conflict with staff.” (Doc. 15, at 2.). Plaintiff also
states that his “front cuff” order is not being
followed, causing conflict with staff. Plaintiff's motion
for a preliminary injunction asks the Court to order staff to
strictly follow his medical orders and to prevent them from
cancelling the medical orders. Plaintiff seeks to have his
medical diet followed, and to have mistakes “fixed at
the time, ” with “no styro's, no mush, no
cold food.” (Doc. 17, at 2.) Plaintiff fails to show
that he is in imminent danger of serious physical injury. His
claims are conclusory and fail to contain “specific,
credible allegations of imminent danger of serious physical
harm.” The Court has examined the Complaint and the
various other pleadings filed by Plaintiff in this case, and
finds that Plaintiff has failed to establish a threat of
imminent danger of serious physical injury. Accordingly,
pursuant to § 1915(g) Plaintiff may not proceed in forma
pauperis in this civil action. The Court's OSC also gave
Plaintiff the opportunity to pay the $400 filing fee by
February 28, 2018. Plaintiff has failed to pay the fee by the
deadline.
IT
IS THEREFORE ORDERED BY THE COURT that this matter
is dismissed without prejudice.
IT
IS FURTHER ORDERED that Plaintiff's pending
motions (Docs. 6, 11, 12, 17, 18, and 19) are denied
as moot.
IT
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