Davis v. Werholtz et al - Document 17
ORDER ENTERED: The order 9 granting plaintiff leave to proceed in forma pauperis is set aside and plaintiff's motion 2 is denied pursuant to 28 U.s.C. 1915(g). Plaintiff's complaint as subsequently amended is dismissed for lack of prosecution, based upon plaintiff's failure to pay the $350.00 district court filing fee. Signed by Senior District Judge Sam A. Crow on 3/28/2012. (Mailed to pro se party Marvin B. Davis by regular mail.) (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MARVIN B. DAVIS,
CASE NO. 08-3242-SAC
ROGER WERHOLTZ, et al.,
O R D E R
On February 29, 2012, the court notified plaintiff that its
recent review of plaintiff’s third amended complaint and litigation
provision in 28 U.S.C. § 1915(g) which provides that:
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.
The only exception to the prepayment requirement in § 1915(g)
is a showing that satisfies the “imminent danger of serious physical
harm” provision in the statute.
Smith v. Veterans Admin., 636 F.3d
1306, 1308 (10th Cir.2011)(quoting Hafed v. Federal Bureau of
Prisons, 635 F.3d 1172, 1179 (10th Cir.2011)).
Finding nothing to
suggest plaintiff could make such a showing on the allegations
asserted in his original and amended complaints, the court directed
plaintiff to show cause why the court should not set aside its order
granting plaintiff leave to proceed in this matter in forma pauperis
under § 1915 without prepayment of the $350.00 district court filing
fee required by § 1914, and why plaintiff’s Third Amended Complaint
should not be dismissed for lack of prosecution if the $350.00
district court filing fee is not paid in full.
Plaintiff had three clear strikes when he initiated the instant
civil rights action in September 2008. He incurred his first strike
when the court dismissed that complaint in Davis v. Simmons, et al.,
D.Kan Case No. 01-3186-SAC, on September 5, 2002, as stating no
claim for relief, 28 U.S.C. § 1915(e)(2)(B)(ii).
On June 29, 2004,
in Appeal No. 04-3122, the Tenth Circuit Court of Appeals affirmed
that judgment. The Supreme Court denied Davis’ petition for writ of
certiorari on January 10, 2005.
Plaintiff incurred his second and third strikes in Davis v.
Kansas Dept. of Corrections, Case No. 01-3417-SAC and Appeal 073044.
The court dismissed the complaint on December 19, 2001, as
appealed from the district court’s denial of plaintiff’s 2005 motion
for relief from judgment, and the denial of his 2006 and 2007
motions for reconsideration.
On November 19, 2007, the Tenth
Circuit Court of Appeals dismissed that appeal as a frivolous
appeal, § 1915(e)(2)(B)(i), and specifically stated it was assessing
a separate strike.
The time for seeking a writ of certiorari
expired in February 2008.
In response to the February 29, 2012, show cause order,
plaintiff disputes the strikes identified by the court, arguing
error in counting a second strike for his appeal in Davis v. Kansas
Jennings v. Natrona County Det. Ctr. Med. Facility, 175 F.3d 775
(10th Cir.1999) in support, specifically the passage stating:
1915(e)(2)(B), the district court dismissal then counts as a single
Id. at 780.
The basic rules set forth in Jennings,
however, further state that if the appellate court “dismiss[es] as
frivolous the appeal of an action the district court dismissed under
28 U.S.C. § 1915(e)(2)(B), both dismissals count as strikes.”
Accordingly, plaintiff’s challenge to being
subject to the 3-strike provision in § 1915(g) has no merit.
Plaintiff also advances an equitable argument based on the
court’s delayed recognition of 3-strikes in plaintiff’s litigation
history, and suggests he could have directed partial payments toward
his outstanding filing fee obligations to payment of the instant
district court filing fee.
However, it is well established that
courts can raise the issue of strikes sua sponte, and cannot create
exceptions to the unambiguous language in § 1915(g) “even to present
Strope v. Cummings, 653 F.3d 1271, 1273 and
1275 (10th Cir.2011)(citations omitted).
While the “in no event”
discretion to ignore it only in the most extraordinary conditions.
Smith, 636 F.3d at 1309-10 (10th Cir.2011)(citing Dubuc v. Johnson,
314 F.3d 1205, 1208-10 (10th Cir.2003)).1
No such extraordinary
In Dubuc, a majority of the panel held the denial of in forma pauperis
status pursuant to § 1915(g) is not a jurisdictional bar, but a statutory
precondition that can be disregarded under certain circumstances. Dubuc involved
review of an appeal brought by a prisoner-plaintiff subject to § 1915(g), and the
impact of Fed.R.App.P 3(a)(2) which allows courts to potentially consider the
merits of an appeal without prepayment of the appellate filing fees. The court
resolved any conflict with the federal appellate rule in favor of § 1915(g), and
declined consideration of the merits of Ducoc’s appeal which lacked any showing
of extraordinary circumstances or imminent danger of serious physical injury.
circumstances exist here.
Plaintiff correctly points out that dismissal of his third
amended complaint would present statute of limitations problems to
the refiling of many of his claims, but the delay thus far in this
case is in part due to plaintiff’s repeated filing of amended
complaints. Moreover, plaintiff makes no allegation or showing that
he could or would have been able to prepay the full $350.00 district
court filing fee to pursue any of his claims if his 3-strike status
extraordinary in any sense to avoid the reach of § 1915(g).
Plaintiff does not allege he was subject to imminent danger of
complaint, and has not paid the $350.00 district court filing fee.
Under these circumstances, the court finds § 1915(g) bars plaintiff
from proceeding in forma pauperis in this matter with payment of the
$350.00 district court filing fee over time.
IT IS THEREFORE ORDERED that the order granting plaintiff leave
to proceed in forma pauperis (Doc. 9) is set aside, and that
plaintiff’s motion (Doc. 2) is denied pursuant to 28 U.S.C. §
subsequently amended is dismissed for lack of prosecution, based
upon plaintiff’s failure to pay the $350.00 district court filing
IT IS SO ORDERED.
This 28th day of March 2012 at Topeka, Kansas.
s/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge