United States District Court, D. Kansas
PATRICK C. LYNN, Plaintiff,
SAMMY CLINE, et al., Defendants.
MURGUIA, U.S. DISTRICT JUDGE
Patrick C. Lynn, is a state prisoner housed at El Dorado
Correctional Facility-Central in El Dorado, Kansas
(“EDCF”). Plaintiff brings this pro se civil
rights Complaint pursuant to 42 U.S.C. § 1983. Plaintiff
has filed a motion to proceed in forma pauperis (Doc. 3).
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. Id. The Court has
examined the Complaint (Doc. 1) and Memorandum and Affidavit
in Support of TRO (Doc. 4) and finds no showing of imminent danger
of serious physical injury.
documented by the Court in Plaintiff's previous cases,
Plaintiff is a highly litigious Kansas inmate. See Lynn
v. Patty, No. 16-3254-JTM, Doc. 12 (Feb. 28, 2017);
Lynn v. Kansas, No. 16-3089-JTM, Doc. 18 (Aug. 5,
2016). In the instant case, Plaintiff takes issue with the
transportation strip-out procedures at EDCF. Plaintiff
alleges that the Kansas Department of Corrections requires
inmates to squat and bend over when coming and going from a
facility. Plaintiff alleges that he has always been exempt
from this practice, until he returned to EDCF on September
alleges that he is physically unable to squat or bend over
without falling and incurring great pain and serious injury.
Plaintiff alleges that he has been punished with disciplinary
reports for refusing to squat and bend over. Plaintiff
alleges that he has submitted numerous grievances seeking a
waiver “per the ADA laws.” (Doc. 1, at 8.)
Plaintiff alleges that he has degenerative spinal disc
disease, which causes him debilitating back spasms and causes
his legs and hips to go numb, causing him to fall and sustain
injuries. Plaintiff also alleges that he has massive vascular
blockages which cause his legs and hips to go numb, causing
him to fall and sustain injuries. Plaintiff alleges that he
has also had two major operations for a torn ACL and
meniscus, requiring him to wear braces on both knees.
Plaintiff alleges he has a “medically issued”
cane, and he uses a wheelchair when he leaves his segregation
alleges that he is “imminently subjected to irreparable
injury or worse” unless the Court grants an injunction
barring prison officials from any use of force upon Plaintiff
for his refusal to squat and/or bend over during the search
process. (Doc. 4, at 1.) Plaintiff alleges that such a
requirement is in contravention of his “bona fide
disabilities & ADA laws.” Id. Plaintiff
alleges that he will “absolutely suffer serious
physical injury & another heart attack more likely than
not.” Id. at 2. Plaintiff alleges that the
squat and bend requirements have caused him to miss outside
court and medical appointments.
alleges that EDCF security staff claim that to obtain a
waiver of the squat and bend procedure, all that is needed is
a medical waiver. See McCoy v. Heimgartner, No.
17-3139-JWB, 2019 WL 121117, at *7-8 (D. Kan. Jan. 7, 2019)
(finding no Fourth Amendment violation for squat and bend
procedure where “although Plaintiff claimed that he had
a back injury, there is no evidence to support a finding that
Plaintiff had a medical restriction regarding his ability to
squat”). Plaintiff alleges that EDCF medical staff
defendants claim they have “zero authority” to
issue medical orders to waive the squat and bend procedures,
claiming medical cannot overrule security.
fails to show that he is in imminent danger of serious
physical injury. He takes issues with the squat and bend
requirement, and acknowledges that he has received
disciplinary reports for his failure to comply with the
requirements. See Jackson v. Gramiak, No. CV
310-063, 2010 WL 3732197, at *2 (S.D. Ga. Aug. 23, 2010)
(finding that allegations concerning seizure of legal
property and the issuance of disciplinary reports do not
involve any danger of physical injury and therefore do not
meet the exception of § 1915(g)), adopted 2010
WL 3733007 (S.D. Ga. Sept. 16, 2010); Taylor v.
Allen, No. 07-0794-CG-M, 2009 WL 1758801, at *2-3 (S.D.
Ala. June 16, 2009) (finding that being labeled a
“snitch” and being written an allegedly false
disciplinary report do not manifest themselves as situations
of “imminent danger of serious physical injury”
and finding that fear, psychological stress, and mental
anguish are not physical injuries as required by the
also alleges that EDCF does not allow his heart medication to
be “kept on person” and he refuses his medication
because they will not allow him to identify the medication
prior to taking it. He alleges that his medication is put
into a cup of water and he is expected to drink the
“mush.” (Doc. 1, at 7.) These allegations fail to
contain specific, credible allegations of imminent danger of
serious physical harm. “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.
harm must be imminent or occurring at the time the complaint
is filed, “allegations of past harm do not
suffice.” Id. (citations omitted). The
“imminent danger” exception has a temporal
limitation-[t]he exception is construed narrowly and
available only ‘for genuine emergencies,' where
‘time is pressing' and ‘a threat . . . is
real and proximate.'” Lynn v. Roberts, No.
11-3073-JAR, 2011 WL 3667171, at *2 (D. Kan. Aug. 22, 2011)
(citation omitted). “Congress included an exception to
the ‘three strikes' rule for those cases in which
it appears that judicial action is needed as soon as possible
to prevent serious physical injuries from occurring in the
meantime.'” Id. (citation omitted).
“[A]llegations of past misconduct of defendants and
even of past injury to plaintiff are insufficient to allow a
three-striker to proceed IFP.” Id. (citation
the reason that the plaintiff speculates he is in danger of
future harm is a pattern of past harassment, he still must
show that danger was imminent at the time he filed his
complaint.” Id. (citations omitted).
“[E]ven specific examples of being denied health care
in the past are not sufficient to satisfy the imminent danger
exception under § 1915(g).” Id. at *3.
(citation omitted). The allegations of imminent physical
danger must be plausible and credible. Id.
vague and utterly conclusory assertions do not meet the
imminent danger exception. Accordingly, 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 fee 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.
THEREFORE ORDERED BY THE COURT that Plaintiff's motion to
proceed in forma pauperis (Doc. 3) is denied.
FURTHER ORDERED that Plaintiff is granted until February 8,
2019, to submit the $400.00 filing fee. The failure to submit
the fee by that date will result in the dismissal of this