Gordon v. Roberts et al - Document 7
ORDER ENTERED: Plaintiff's motions 2 and 6 for leave to proceed in forma pauperis are denied. This action is dismissed and all relief is denied without prejudice. Signed by Senior District Judge Sam A. Crow on 3/21/2012. (Mailed to pro se party Willis Shane Gordon by regular mail.) (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
O R D E R
On January 11, 2011, this court screened the pleadings and
motions filed herein by plaintiff and entered a lengthy Memorandum
and Order finding that plaintiff’s allegations failed to state a
claim. The court granted plaintiff’s Motion for Leave to Amend his
Complaint, noting that he could file an Amended Complaint without
leave of court.
However, the court explained the proper procedure
for submitting an Amended Complaint and held that the motion to
amend was improperly submitted without a complete, proposed Amended
The court expressly held that it would not
construe any part of plaintiff’s Motion for Leave to Amend as his
First Amended Complaint, and found that the allegations in the
motion were not upon forms for filing a § 1983 complaint and were
otherwise deficient in several respects.
The court set forth the
several deficiencies it found in plaintiff’s allegations in his
original complaint as well as in his motion to amend, and ordered
plaintiff to submit a complete First Amended Complaint upon courtapproved forms that cured those deficiencies.
Plaintiff was also
given time to submit a certified copy of his inmate account
statement in support of his motion to proceed without prepayment of
He was forewarned that if he failed to comply with these
orders within the allotted time, this action would be dismissed.
In addition, the court examined several of Mr. Gordon’s
prior civil cases that had been dismissed in order to determine if
three qualified as “strikes” under 28 U.S.C. § 1915(g).
found that Mr. Gordon, while a prisoner and prior to filing this
action, had on 3 or more prior occasions filed civil actions or
appeals in a court of the United States, each of which was found to
be frivolous or to have failed to state a claim upon which relief
restrictions imposed in § 1915(g) appeared to be applicable to this
Plaintiff was informed that the only exception to the
prepayment requirement of § 1915(g) is for the prisoner that makes
specific, credible allegations that he is under imminent danger of
serious physical injury at the time the complaint is filed, and
held that none of the allegations made by Mr. Gordon thus far in
his pleadings suggested he is in such danger.
Mr. Gordon was
granted time to show cause why his previously dismissed cases
discussed in the court’s screening order should not be counted as
strikes and why the provisions of § 1915(g) should not apply to
He was forewarned that if he did not show good cause
within the time allotted, he could be required to pay the full
filing fee before this action may proceed further.
Mr. Gordon was
statement of his inmate account for the six-months preceding the
filing of this action; (2) submit a proper, complete First Amended
Complaint upon court-provided forms containing all claims and
allegations that he intends to pursue in this action and that cures
the deficiencies discussed in the screening order; (3) show cause
why his previously-dismissed cases discussed herein should not be
treated as strikes pursuant to 28 U.S.C. §1915(g), and show cause
why he should not be required to submit the $350.00 filing fee in
full before this action may proceed further.
The time in which Mr. Gordon was required to comply with
these orders of the court has expired, and the only thing he has
submitted is his second Motion to Proceed Without Prepayment of
Fees upon forms together with the certified copy of his inmate
He has not filed an Amended Complaint that
cures the deficiencies discussed in the screening order.
discussed by the court should not be treated as strikes.
addition, he has alleged no reason for him to avoid designation as
a three strikes litigant and up-front payment of the full filing
fee in this case.
“Rule 41(b) (of the Federal Rules of Civil Procedure)
authorizes a district court, upon a defendant’s motion, to order
the dismissal of an action for failure to prosecute as well as for
failure to comply with the Federal Rules of Civil Procedure or ‘a
Young v. U.S., 316 Fed.Appx. 764, 771 (10th Cir.
controlling, authority)(citing Fed.R.Civ.P. 41(b)). “This rule has
been interpreted as permitting district courts to dismiss actions
sua sponte when one of these conditions is met.”
Id. (citing Link
v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962); Olsen v. Mapes,
333 F.3d 1199, 1204 n. 3 (10th Cir. 2003)).
“In addition, it is
well established in this circuit that a district court is not
obligated to follow any particular procedures when dismissing an
The court dismisses this action on account of plaintiff’s
failure to comply with orders of the court entered on January 11,
The court further finds that plaintiff is a three-strikes
litigant, and has still not shown that he is in imminent danger of
serious physical injury. Accordingly, the court denies plaintiff’s
motion to proceed without prepayment of fees.
IT IS THEREFORE ORDERED that plaintiff’s motions for leave
to proceed in forma pauperis (Docs. 2 & 6) are denied, and that
IT IS SO ORDERED.
Dated this 21st day of March, 2012, at Topeka, Kansas.
s/Sam A. Crow
U. S. Senior District Judge