United States District Court, D. Kansas
TERRANCE D. GODFREY, Plaintiff,
JOE NORWOOD, et al., Defendants.
MEMORANDUM AND ORDER
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. The Court
entered an Order to Show Cause (Doc. 11) granting Plaintiff
until June 17, 2019, to show good cause why the dismissals of
his prior lawsuits should not prevent him from proceeding
in forma pauperis in this action. The Court noted
that Plaintiff is subject to the “three-strikes”
provision under 28 U.S.C. § 1915(g).
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).
filed a Response (Doc. 12) which fails to show good cause why
Plaintiff is not subject to the “three-strikes”
provision under 28 U.S.C. § 1915(g). Plaintiff argues
that a “strike” should only be assessed if the
entire case is dismissed as frivolous or for failure to state
a claim, not when only one of several claims is dismissed.
(Doc. 12, at 2.) The Court agrees, but Plaintiff fails to
show that any of the cases assessing him strikes involved
dismissal of less than all of the claims involved. Plaintiff
also suggests that some of his cases were reversed and
remanded. However, he does not dispute the cases cited by the
Court as strikes. See Godfrey v. Danville Corr.
Ctr., No. 98-cv-2097-MPM-DGB (C.D. Ill. May 27, 1999)
(Doc. 61) (stating that plaintiff's complaint is
dismissed for failure to state a claim upon which relief can
be granted, and that “this dismissal counts as a strike
against the pla[intiff] under the ‘three strikes'
provision of 28 U.S.C. 1915(g)”); 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). Plaintiff did not appeal No. 99-cv-1127; the appeal
in No. 98-cv-2097 was dismissed on May 5, 2000; and the
appeal in No. 99-cv-1171 was dismissed on July 28, 2000.
also argues that he meets the only exception to the three
strikes provision because he is in imminent danger of serious
physical injury. Plaintiff takes issue with being placed on a
“no female contact” status with regard to medical
staff. (Doc. 12, at 7.) Plaintiff alleges that he is in
danger of “committing self-harm, suicide attempts,
mental health issues.” (Doc. 12, at 3.) Plaintiff
alleges that he is being denied adequate mental health
treatment and pain medication. Plaintiff alleges that he was
sexually harassed by Nurse Glen, who allegedly touched
Plaintiff's right thigh and right arm/shoulder
“without the Plaintiff's approval.” (Doc. 12,
at 4.) Plaintiff alleges that he is being denied treatment by
female nurses and denied private legal calls to his
attorneys, and he is being harassed and retaliated against by
staff. Plaintiff alleges Defendants are causing him to suffer
from stress, migraines, loss of weight, mental deterioration
and depression. (Doc. 12, at 6.)
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
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
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. (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 acknowledges that he is
receiving mental health treatment, but he disagrees with the
treatment provided and the “no female contact”
rule regarding his nursing staff.
courts have concluded that where a three-striker inmate's
allegations reflect that he has had access to medical care
and simply disagrees with the opinions of the medical
personnel who have examined him, he fails to satisfy the
imminent danger requirement of 28 U.S.C. §
1915(g).” Showalter v. Lee, No. 7:15CV00106,
2015 WL 1800478, at *3 (W.D. Va. April 16, 2015) (citing
Joyner v. Fish, No. 7:08CV00359, 2008 WL 2646691
(W.D. Va. July 3, 2008) (imminent danger not demonstrated
when plaintiff had been given thorough medical treatment,
never been denied doctor visit, and been advised to take
medication but disagreed with opinions of medical
professionals); Renoir v. Mullins, No. 7:06CV00474,
2006 WL 2375624 (W.D. Va. Aug. 15, 2006) (finding
disagreement with diagnosis and prescribed treatment is not
imminent danger of serious physical harm); Brown v.
Beard, 492 F.Supp.2d 474, 478 (E.D. Pa. June 27, 2007)
(prisoner was not in imminent danger when disputing the
quality of treatment he was receiving for various medical
conditions); Watley v. Escobar, No. 4:09CV3003, 2010
WL 1643801 (N.D. Ohio April 22, 2010) (no imminent danger
where plaintiff received medical treatment but disagreed with
conclusions of medical personnel over pain medication and
medical procedures); James v. Hunter, No.
08-0729-CG-B, 2009 WL 3052131, at *3 (S.D. Ala. Sept. 18,
2009) (disagreement with medical treatment provided does not
satisfy § 1915(g) exception); Baugh v. Missouri
Dep't of Corrections, No. 4:08CV01517 ERW, 2008 WL
4831783, at *1, n. 1 (E.D. Mo. Nov. 5, 2008) (no imminent
danger where plaintiff admitted he was offered treatment for
medical conditions but disagreed with offered treatment)).
court in Bea v. Watson noted that “an inmate
cannot create the imminent danger so as to escape the three
strikes provision of the PLRA. To allow inmates to allege
future infliction of self-harm to bypass § 1915(g) would
eviscerate Congress' intent to limit the frequency of
inmates' frivolous suits.” Bea v. Watson,
No. 7:09-cv-00232, 2009 WL 1764834, at *2 (W.D. Va. June 22,
2009) (citing Ball v. Allen, 2007 WL 484547 (S.D.
Ala. Feb. 8, 2007); Muhammad v. McDonough, 2006 WL
1640128 (M.D. Fla. June 9, 2006); Wallace v.
Cockrell, 2003 WL 22961212 (N.D. Tex. Oct. 27, 2003)).
“[B]y alleging an imminent threat of self-inflicted
injury, a prisoner may not sidestep the PLRA “three
strike” rule, codified at 28 U.S.C. § 1915(g),
which bars in forma pauperis prisoner complaints
from individuals whose claims have been dismissed as
frivolous three times unless the prisoner shows he is
‘under imminent danger of serious physical
injury.'” Argetsinger v. Ritter, No.
08-cv-01990-PAB-KMT, 2009 WL 3201088, at *4 (D. Colo. Sept.
29, 2009) (citing Bea v. Watson, 2009 WL 1764834 at
*2; Moxley v. Johnson, No. 3:05-CV-0038, 2005 WL
1131063, *2 (N.D. Tex. May 6, 2005)).
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.” Plaintiff has been
provided medical care and his disagreements with medical
staff 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. § 1914.
IS THEREFORE ORDERED BY THE COURT that
Plaintiff's motions for leave to proceed in forma