Reynolds v. Luckenbaugh et al

Filing 8

ORDER Denying Leave to Proceed In Forma Pauperis. ORDERED the Order Granting 28 U.S.C. § 1915 Motion Without Payment of Initial Partial Filing Fee 4 is vacated. FURTHER ORDERED that the Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 2 is denied, by Judge Lewis T. Babcock on 2/23/12. (lygsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-00022-BNB
HOOVER REYNOLDS,
Plaintiff,
v.
H. MICHAEL LUCKENBAUGH,
CLEMENT P. ENGLE,
EL PASO COUNTY COURT OF COLORADO, and
THE STATE OF COLORADO OFFICE OF THE ATTORNEY GENERAL,
Defendants.

ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS

Plaintiff, Hoover Reynolds, is a prisoner incarcerated at the Donaldson
Correctional Facility in Bessemer, Alabama. Mr. Reynolds initiated this action by filing
pro se a Prisoner Complaint claiming that his rights under the United States Constitution
have been violated and a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant
to 28 U.S.C. § 1915. On January 10, 2012, Magistrate Judge Boyd N. Boland entered
an order granting Mr. Reynolds leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915. On January 12, 2012, after it became apparent that Mr. Reynolds may
be subject to the filing restriction in § 1915(g), Magistrate Judge Boland ordered Mr.
Reynolds to show cause why the order granting leave to proceed in forma pauperis
should not be vacated and why he should not be denied leave to proceed in forma
pauperis. On February 17, 2012, Mr. Reynolds filed a response to Magistrate Judge
Boland’s show cause order. For the reasons discussed below, the order granting leave

to proceed in forma pauperis will be vacated, leave to proceed in forma pauperis will be
denied, and Mr. Reynolds will be directed to pay the $350.00 filing fee if he wishes to
pursue his claims in this action.
Mr. Reynolds seeks leave to proceed in this action without prepayment of fees or
security therefor pursuant to the federal in forma pauperis statute, 28 U.S.C. § 1915. In
relevant part, § 1915 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).
Magistrate Judge Boland initially noted that, in order to apply the filing restriction
in § 1915(g), the Court may take judicial notice of its own records as well as the records
of other courts, see Green v. Nottingham, 90 F.3d 415, 418 (10th Cir. 1996), and that the
court may count actions dismissed prior to the enactment of § 1915(g), see id. at 420.
Magistrate Judge Boland also determined that Mr. Reynolds has initiated at least three
actions in a court of the United States while he was incarcerated or detained in any
facility that were dismissed for failure to state a claim. See Reynolds v. Wilson, No. 0114868-I (11th Cir. Dec. 3, 2001) (dismissing appeal as frivolous pursuant to §
1915(e)(2)(B)(i)); Reynolds v. Bodiford, No. 95-cv-00829-AH-S (S.D. Ala. Feb. 14,
1996) (dismissed as frivolous pursuant to 28 U.S.C. § 1915(d)); Reynolds v. City of
Montgomery, No. 93-cv-00388-ID-JLC (M.D. Ala. May 27, 1993) (dismissed pursuant to
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28 U.S.C. § 1915(d)); see also Reynolds v. Culliver, No. 05-cv-0046-CG-M, 2006 WL
2402314 (S.D. Ala. Aug. 16, 2006) (dismissing case pursuant to 28 U.S.C. § 1915(g)
and listing strikes). Finally, although Mr. Reynolds alleged he is in imminent danger of
serious physical injury because he is “[b]eing assaulted for this alleged crime” (ECF No.
2 at 2), Magistrate Judge Boland concluded this vague allegation was not sufficient to
demonstrate imminent danger of serious physical injury for the purposes of § 1915(g).
See White v. Colorado, 157 F.3d 1226, 1231-32 (10th Cir. 1998).
Mr. Reynolds argues in his response to Magistrate Judge Boland’s show cause
order that he is not subject to the filing restriction in § 1915(g) because he did not file
either Reynolds v. Culliver, No. 05-cv-0046-CG-M, 2006 WL 2402314 (S.D. Ala. Aug.
16, 2006), or Reynolds v. Bodiford, No. 95-cv-00829-AH-S (S.D. Ala. Feb. 14, 1996).
With respect to Reynolds v. Culliver, No. 05-cv-0046-CG-M, 2006 WL 2402314 (S.D.
Ala. Aug. 16, 2006), that case was not counted as one of the three prior strikes.
However, the Southern District of Alabama in Reynolds v. Culliver, No. 05-cv-0046-CGM, 2006 WL 2402314 (S.D. Ala. Aug. 16, 2006), does list as strikes the same three
cases identified by Magistrate Judge Boland, and Mr. Reynolds does not dispute that he
filed at least two of those cases. With respect to Reynolds v. Bodiford, No. 95-cv00829-AH-S (S.D. Ala. Feb. 14, 1996), which Magistrate Judge Boland did list as a
strike, the Court notes that the docketing records for that case available through Public
Access to Court Electronic Records (PACER) indicate the case was filed by Hoover
Reynolds, inmate number 133254, with a listed address of 100 Warrior Lane,
Bessemer, Alabama. That is the same inmate number and the same address Mr.
Reynolds has provided to the Court in this action. Therefore, the Court finds that Mr.
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Reynolds has three or more prior dismissals that subject him to the filing restriction in §
1915(g).
“There is only one exception to the prepayment requirement in § 1915(g)” and a
prisoner with three or more strikes who seeks to fall within that exception must “make
specific, credible allegations of imminent danger of serious physical harm.” Hafed v.
Fed. Bureau of Prisons, 635 F.3d 1172, 1179 (10th Cir. 2011) (internal quotation marks
omitted). However, vague and conclusory assertions of harm will not satisfy the
imminent danger requirement of § 1915(g). See White, 157 F.3d at 1231. Furthermore,
allegations of past injury or harm are not sufficient. See Fuller v. Wilcox, 288 F. App’x
509, 511 (10th Cir. 2008). “Every circuit to have decided the issue so far has concluded
that the statute’s use of the present tense shows that a prisoner must have alleged an
imminent danger at the time he filed his complaint.” Hafed, 635 F.3d at 1179 (collecting
cases).
Mr. Reynolds also argues in his response to Magistrate Judge Boland’s show
cause order that he should be allowed to proceed in forma pauperis because he is in
imminent danger of serious physical injury. He specifically alleges that he has “been
assaulted on several occasions, jaw broken in two places, head burst on two occasions
and eyes injur[ed] due to the alleged Colorado convictions of being a sex offender as a
rap[ist]. . . . Plaintiff[’s] life is likely to be taken without delay.” (ECF No. 6 at 3.) In
support of these allegations Mr. Reynolds refers to an attached exhibit titled “Alabama
Department of Corrections Inmate Summary as of 10/11/2011” (see ECF No. 6 at 6-9),
that lists disciplinary offenses for Mr. Reynolds from 1983 through October 11, 2011.
The Court does not agree that Mr. Reynolds’ mere involvement in a number of
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prison disciplinary offenses demonstrates imminent danger of serious physical injury. In
addition, the disciplinary offenses in which Mr. Reynolds was involved prior to October
11, 2011, do not demonstrate he is in imminent danger of serious physical injury at the
time the instant action was filed in January 2012. Finally, even if Mr. Reynolds was in
imminent danger of serious physical injury at the time the instant action was filed
because he has been involved in a number of disciplinary offenses, the Court finds that
he is not in imminent danger of serious physical injury with respect to his claims against
Defendants in this action because the claims Mr. Reynolds asserts against Defendants
arise out of actions allegedly taken in 1988. (See ECF No. 1 at 7.)
Therefore, the Court finds that § 1915(g) precludes Mr. Reynolds from
proceeding in forma pauperis in this action. The Prisoner’s Motion and Affidavit for
Leave to Proceed Pursuant to 28 U.S.C. § 1915 will be denied. If Mr. Reynolds wishes
to pursue his claims in this action, he must pay the $350.00 filing fee pursuant to 28
U.S.C. § 1914(a). Accordingly, it is
ORDERED the Order Granting 28 U.S.C. § 1915 Motion Without Payment of
Initial Partial Filing Fee (ECF No. 4) is vacated. It is
FURTHER ORDERED that the Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 2) is denied. It is

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FURTHER ORDERED that Mr. Reynolds shall have thirty (30) days from the
date of this order to pay the entire $350.00 filing fee if he wishes to pursue his claims in
this action. It is
FURTHER ORDERED that if Mr. Reynolds fails to pay the entire $350.00 filing
fee within the time allowed, the complaint and the action will be dismissed without
further notice.
DATED at Denver, Colorado, this

23rd

day of

February

, 2012.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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