United States District Court, D. Kansas
TERRANCE D. GODFREY, Plaintiff,
JOE NORWOOD, et al., Defendants.
ORDER TO SHOW CAUSE
CROW U.S. SENIOR DISTRICT JUDGE.
Terrance D. Godfrey, a prisoner confined in the Hutchinson
Correctional Facility in Hutchinson, Kansas
(“HCF”), filed a pro se civil rights Complaint
pursuant to 42 U.S.C. § 1983 and Applications to Proceed
In Forma Pauperis. The Court granted the motions for leave to
proceed in forma pauperis on January 16, 2019. (Doc.
9.) After further review, it appears that Plaintiff has at
least “three strikes” under 28 U.S.C. §
1915(g). Therefore, the Court vacates the Order granting
in forma pauperis status, and will allow Plaintiff
an opportunity to show cause why the dismissals of his prior
lawsuits should not prevent him from proceeding in forma
pauperis in this action.
provision of the Prison Litigation Reform Act of 1995
operates “to revoke, with limited exception, in
forma pauperis privileges for any prisoner who has filed
three or more lawsuits that fail to state a claim, or are
malicious or frivolous.” Skinner v. Switzer,
562 U.S. 521, 535 (2011) (citing 28 U.S.C. §1915(g)).
The statute 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 was 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).
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.” See Godfrey v. Danville
Correctional Center, No. 98-cv-2097-MPM-DGB (C.D. Ill.
May 27, 1999) (Doc. 61); Godfrey v. Spencer, No.
99-cv-1127-JBM-JAG (C.D. Ill. Sept. 18, 2000) (Doc. 44)
(finding that dismissal counts as a strike against the
plaintiff under the “three strikes” provision of
28 U.S.C. 1915(g) and noting that Plaintiff has earned more
than “three strikes”); Godfrey v.
Spencer, No. 99-cv-1171-JBM-JAG (C.D. Ill. March 6,
2000) (Doc. 17) (finding case frivolous, counting dismissal
as a strike, and noting that plaintiff has earned three
strikes). Accordingly, Plaintiff may proceed in forma
pauperis only if he establishes a threat of imminent danger
of serious physical injury.
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).
alleges a denial of his right to private legal calls with his
attorney and a failure to protect him from sexual harassment
by staff. Plaintiff takes issue with a “no female
contact” rule regarding his assigned nursing staff and
alleges sexual harassment by his assigned male nurse.
Plaintiff alleges that Nurse Glen touched Plaintiff on his
right thigh and right arm/shoulder without Plaintiff's
approval. (Doc. 6, at 9.) Plaintiff makes bald allegations
that staff are “harassing, torturing, retaliating,
abusing and humiliating” him, without any specific
factual allegations. (Doc. 6, at 8.) Plaintiff seeks monetary
damages. (Doc. 6, at 14.) 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 will give Plaintiff an opportunity to
show cause in writing why the dismissals of his prior
lawsuits as set forth above, do not preclude his in forma
pauperis status under § 1915(g). Plaintiff's
response to this Order must be filed by June 17, 2019.
Alternatively, Plaintiff may submit the $400 filing fee by
IS THEREFORE ORDERED BY THE COURT that the previous
Order granting Plaintiff leave to proceed in forma
pauperis (Doc. 9) is vacated and set
IS FURTHER ORDERED that Plaintiff is granted until
June 17, 2019, in which to either (1) show
good cause, in writing, to the Honorable Sam A. Crow, United
States District Judge, why the dismissals of his prior
actions or appeals do not preclude his in forma
pauperis status under § 1915(g); or (2) pay the
$400 filing fee.
IS FURTHER ORDERED that if Plaintiff fails to either
pay the $400.00 filing fee or file a
response to this Order to Show Cause by June 17,
2019, this action will be dismissed without further
notice to Plaintiff.
IS FURTHER ORDERED that Plaintiff's motion to
appoint counsel (Doc. 3) is denied without
prejudice to renewal if Plaintiff pays the filing