United States District Court, D. Kansas
PATRICK C. LYNN, Plaintiff,
SHERRI PRICE, et al., Defendants.
D. Crabtree United States District Judge.
Patrick C. Lynn, brings this pro se civil rights case under
42 U.S.C. § 1983. Plaintiff is incarcerated at the
Lansing Correctional Facility in Lansing, Kansas
(“LCF”). Plaintiff has filed a motion for leave
to proceed in forma pauperis (Doc. 2), and a Motion for
Filing Fee Waiver Based on Imminent Dangers of Serious
Physical Injury (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 Plaintiff’s Motion
for Filing Fee Waiver Based on Imminent Dangers of Serious
Physical Injury (Doc. 3) and finds no showing of imminent
danger of serious physical injury.
current case, Plaintiff alleges that LCF has improperly
seized or destroyed his legal files. Plaintiff alleges that
he is being transferred between Kansas Department of
Corrections (“KDOC”) facilities every four months
in retaliation for exercising his First Amendment rights.
Plaintiff alleges that he is transferred between the El
Dorado Correctional Facility (“EDCF”), the
Hutchinson Correctional Facility (“HCF”), and
LCF, and that every transfer has resulted in the loss of his
legal and personal property because there is no consistency
as to what is allowed at each facility. Plaintiff alleges
that while EDCF and HCF allow excess legal materials for
pending court cases, LCF does not.
alleges that when he was transferred from HCF to LCF at the
end of May 2019, his property was rearranged into multiple
boxes for the convenience of staff. Plaintiff alleges that
despite correspondence from HCF to LCF regarding the property
boxes, his property was taken to the LCF property room upon
his arrival at LCF. Plaintiff alleges that staff went through
his property and made their own determinations about what
legal materials were related to pending court cases and the
rest was seized for destruction. Plaintiff refused the
half-full transfer box they attempted to return to him.
Plaintiff was told that his excess property would be
destroyed if he did not have someone retrieve it.
alleges that the issues with his property continue to cause
him to suffer extreme distress and cardiac issues, and that
his grievances regarding his property have been ignored or
rejected. Plaintiff alleges that he cannot meet his court
deadlines in his pending cases without his legal files, which
causes unnecessary duress that affects his physical and
psychological health. Plaintiff alleges that in June of 2019,
his personal property was ransacked, destroyed, and broken
during a re-inventory of his cell while he was in the
infirmary at LCF. Plaintiff alleges that unless Defendants
return his property he will suffer additional cardiac issues,
a crippling stroke, or a fatal heart attack.
Plaintiff’s legal property is the focus of his
Complaint, he also makes other allegations in his Complaint
regarding: access to the law library, pens and stamps; the
theft of his television in 2018; receiving disciplinary
violations without due process; the cancellation of his
“keep on person” (“KOP”) medications;
the denial of face-to-face communications with attorneys; and
the illegal opening of his mail.
alleges that his KOP medications were cancelled on July 5,
2019, based on a false allegation that he had tossed out all
of his KOP mediations. Plaintiff was told that if he wanted
to receive the medication, he would need to receive it from
medical staff by placing a cup of water outside his cell bars
for the CMA to “dump” the pills into. Plaintiff
refused to do this because on a prior occasion a nurse
attempted to give Plaintiff someone else’s medication.
alleges that he should be exempted from the three-strikes
statute because he is in imminent danger of serious physical
injury due to the “overwhelming distress at the
retaliatorily malicious seizures/destructions & denials
of [his] legal property.” (Doc. 1, at 22.) Plaintiff
alleges that he is in imminent danger of serious physical
injury because the stress has caused him to experience near
daily heart attack spasms, and he is at a high risk of
suffering a crippling stroke or fatal heart attack.
filed a Motion for Filing Fee Waiver Based on Imminent
Dangers of Serious Physical Injury (Doc. 3), alleging that
since his transfer to LCF on May 23, 2019, he has been
suffering near daily severe heart attack symptoms and has
been hospitalized and admitted to the LCF Infirmary. He
alleges that his KOP medications were cancelled on July 5,
2019, and while drafting his Complaint he had to take several
nitro pills because of the overwhelming stress regarding the
seizure of his property.
allegations fail to contain plausible and 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 F. App’x 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). The allegations of imminent
physical danger must be plausible and credible. Id.
at *3 (citations omitted).
claims in Plaintiff’s Complaint deal with his legal
property and access to the courts. Neither situation renders
Plaintiff in imminent danger of serious physical harm.
See Lynn, 2011 WL 3667171, at *3 (“Obviously,
allegations regarding conditions that involve no danger of
physical injury, such as denial of court access or First
Amendment claims of interference with mail and telephone
privileges or religious rights, are not sufficient to
establish the exception.”) (citations omitted).
he cannot claim that his stress over the situation satisfies
the statutory exception. In Skillern v. Jackson,
plaintiff argued that defendants failed to provide him with
correspondence material that he had requested on several
occasions. Skillern v. Jackson, No. CV610-014, 2010
WL 1737637, at *2 (S.D. Ga. March 29, 2010),
adopted, 2010 WL 1737608 (S.D. Ga. April 29, 2010).
Plaintiff asserted that “doctors prognosticate”
that he will have another heart attack due to the stress
defendants’ “illicit conduct causes.”