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Lynn v. Price

United States District Court, D. Kansas

August 30, 2019

PATRICK C. LYNN, Plaintiff,
v.
SHERRI PRICE, et al., Defendants.

          ORDER

          Daniel D. Crabtree United States District Judge.

         Plaintiff, 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).

         Plaintiff 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.”[1]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.

         In this 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.

         Plaintiff 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.

         Plaintiff 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.

         Although 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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff’s 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 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). 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).

         The 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).

         Also, 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.” ...


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