United States District Court, D. Kansas
RANDALL A. FULBRIGHT, Plaintiff,
MICHAEL KAGAY, Defendant.
MEMORANDUM AND ORDER
CROW, U.S. SENIOR DISTRICT JUDGE
Fulbright, a pre-trial detainee confined in the Shawnee
County Jail, filed a pro se civil rights complaint pursuant
to 42 U.S.C. § 1983. Plaintiff's complaint includes
few details but seems to allege constitutional defects with
Mr. Fulbright's 2014 Kansas conviction for misdemeanor
sexual battery. As relief, Plaintiff requests a new trial
on the 2014 charge and removal from registration as a sex
offender under the Kansas Offender Registration Act (KORA),
K.S.A. 22-4901, et seq.
complaint was filed on September 14, 2018. Plaintiff has not
paid the $400.00 district court filing fee or filed a motion
for leave to proceed in forma pauperis. However, Plaintiff
has long been 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 or detained in any facility,
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.” 28 U.S.C. § 1915(g). Accordingly, as
Plaintiff has been repeatedly advised, he may proceed in
forma pauperis only if he establishes a threat of imminent
danger of serious physical injury. Id.
Fulbright alleges he is in imminent danger from “other
dangerous inmates.” ECF No. 1 at 2.
meet the only exception to the prepayment requirement, a
prisoner who has accrued three strikes must make
‘specific, credible allegations of imminent
danger[.]” Hafed v. Federal Bureau of Prisons,
635 F.3d 1172, 1175 (10th Cir. 2011) (quoting
Kinnel v. Graves, 265 F.3d 1125, 1127-28
(10th Cir. 2001)). He should identify at least
“the general nature of the ‘serious physical
injury' he asserts is imminent.” Id. at
1179 (quoting White v. Colorado, 157, F.3d 1226,
1232 (10th Cir. 1998)). “[V]ague and utterly
conclusory assertions, ” such as those made by Mr.
Fulbright, are not sufficient. Id.
Mr. Fulbright draws no correlation between the alleged
imminent danger and the basis of his lawsuit. To meet the
imminent danger exception, “there must be a nexus
between the imminent danger a three-strikes prisoner alleges
to obtain IFP status and the legal claims asserted in his
complaint.” Pettus v. Morgenthau, 554 F.3d
293, 297 (2nd Cir. 2009); see also Davis v.
CoreCivic, 2017 WL 4269986, *1 (W.D. Okla. Sept. 26,
2017); Lynn v. Roberts, 2011 WL 3667171, *1 (D. Kan.
Aug. 22, 2011). The imminent danger must be fairly traced
back to the asserted wrongs so that judicial relief on his
claims could possibly redress the alleged danger.
Pettus, 554 F.3d at 298-99. Here, Mr. Fulbright has
not demonstrated any nexus between the alleged imminent
danger and the claims he asserts.
pursuant to § 1915(g), Plaintiff may not proceed in
forma pauperis in this civil action. Plaintiff is given time
to pay the full $400.00 district court filing
to the Court. If he fails to pay the full fee within the
prescribed time, the complaint will be dismissed based upon
Plaintiff's failure to satisfy the statutory district
court filing fee required by 28 U.S.C. § 1914.
Plaintiff's complaint were liberally construed as a
petition for writ of habeas corpus, it would be subject to
dismissal. The Court does not have jurisdiction over
a habeas claim based on Mr. Fulbright's 2014 conviction
because he is no longer in custody pursuant to that
conviction. A petitioner seeking habeas relief must be in
custody under the challenged conviction or sentence at the
time the application is filed. Maleng v. Cook, 490
U.S. 488, 490-91 (1989). Nor is the resulting KORA registry
requirement a sufficient restraint on liberty to qualify as
being “in custody.” See Calhoun v. Att'y
General of Colorado, 745 F.3d 1070, 1074
(10th Cir. 2014). Moreover, Mr. Fulbright did not
exhaust his state court remedies, and his habeas claim is not
timely. See 28 U.S.C. § 2254(b)(1); 28 U.S.C.
§ 2244(d)(1). Finally, to the extent Mr. Fulbright is
raising a challenge to the pending state charges of failing
to register under KORA, the abstention doctrine precludes
this Court's intervention in a pending state prosecution.
See Younger v. Harris, 401 U.S. 37, 43 (1971);
see also Hicks v. Miranda, 422 U.S. 332, 349 (1975).
IS THEREFORE ORDERED BY THE COURT that Plaintiff is
granted until December 4, 2018, to submit
the $400.00 filing fee or to show cause why his complaint
should not be dismissed. The failure to submit the fee or to
show good cause by that date will result in the dismissal of
this matter without prejudice and without additional prior
IS SO ORDERED.
 Case No. 14-CR-000833 in the District
Court of Shawnee County, Kansas.
 If a person is not granted in forma
pauperis status under § 1915, the fee to file a
non-habeas civil action includes the $350.00 fee required by
28 U.S.C. § 1914(a) and a $50.00 general administrative
fee pursuant to § 1914(b) and the District Court
Miscellaneous Fee ...