Custard v. Belter et al
Filing
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ORDER denying 14 Motion to Reconsider, by Judge Lewis T. Babcock on 5/7/12.(lygsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-00361-BNB
BOB ALLEN CUSTARD,
Plaintiff,
v.
BELTER,
G. BREAM,
BENJAMIN BRIESCHKE,
CHILDS,
MARK COLLINS,
CLAY COOK,
BLAKE DAVIS,
T. EISCHEN,
ANDREW FENLON,
FOSTER,
WILLIAM HAYGOOD,
J. JOHNSON,
D. KRIST,
R. KRIST,
LLOYD,
RICHARD MADISON,
TODD MANSPEAKER,
ANTHONY OSAGIE,
P. RANGEL,
STEVEN ROGERS,
ROSENBECK,
TENA SUDLOW, and
SZEMBORSKI,
Defendants.
ORDER DENYING MOTION TO RECONSIDER
Plaintiff, Bob Allen Custard, is a prisoner in the custody of the Federal Bureau of
Prisons (BOP) and is currently incarcerated at the United States Penitentiary
Administrative Maximum (ADX), in Florence, Colorado. Mr. Custard filed a pro se
motion titled, “Plaintiff’s Motion for Reconsideration of and/or Relief from the 4/23/12
Order,” on April 30, 2012.
The Court must construe the motion liberally because Mr. Custard is a pro se
litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). The motion to reconsider will be denied for the reasons
stated below.
A litigant subject to an adverse judgment, and who seeks reconsideration by the
district court of that adverse judgment, may “file either a motion to alter or amend the
judgment pursuant to Fed. R. Civ. P. 59(e) or a motion seeking relief from the judgment
pursuant to Fed. R. Civ. P. 60(b).” Van Skiver v. United States, 952 F.2d 1241, 1243
(10th Cir. 1991). Mr. Custard filed the motion to reconsider within twenty-eight days
after the order denying leave to proceed in forma pauperis was entered in the instant
action. The Court, therefore, finds that the motion to reconsider is filed pursuant to Rule
59(e). See Fed. R. Civ. P. 59(e).
The three major grounds that justify reconsideration are: (1) an intervening
change in the controlling law; (2) the availability of new evidence; and (3) the need to
correct clear error or prevent manifest injustice. See Servants of the Paraclete v. Does,
204 F.3d 1005, 1012 (10th Cir. 2000).
Plaintiff initiated this action by filing a pro se civil rights complaint and a
Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915. Mr.
Custard sought leave to proceed without prepayment of fees or security therefor
pursuant to § 1915. In relevant part, this statute provides:
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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). For the purposes of this analysis, the Court may consider actions
or appeals dismissed prior to the enactment of 28 U.S.C. § 1915(g). Green v.
Nottingham, 90 F.3d 415, 420 (10th Cir. 1996).
Mr. Custard, on three or more prior occasions, has brought an action in this Court
that was dismissed on the grounds that it was frivolous, malicious, or that it failed to
state a claim. See Custard v. Lappin, et al., 07-cv-00844-ZLW (D. Colo. July 26, 2007)
(dismissed as malicious pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)), aff’d, 260 Fed. Appx.
73 (10th Cir. Jan. 3, 2008) (recognizing that Mr. Custard is subject to § 1915(g) three
strike filing restriction); Custard v. Gariety, No. 04-cv-03078-RED-P (S.D. Mo. July 22,
2004) (dismissed pursuant to 28 U.S.C. § 1915A(b)(1) & (2)), aff’d, No. 05-1067 (8th
Cir. Aug. 3, 2005); Custard v. Agtuca, et al., No. 00-cv-00927-JPG (S.D. Ill. Mar. 6,
2002) (dismissed for failure to exhaust counted as a strike), appeal dismissed, No. 021748 (8th Cir. July, 12, 2002).
However, the Court may not deny Mr. Custard leave to proceed in forma
pauperis if he is “under imminent danger of serious physical injury.” 28 U.S.C.
§ 1915(g). In order to meet the “imminent danger” requirement, “the harm must be
imminent or occurring at the time the complaint is filed.” Ciarpaglini v. Saini, 352 F.3d
328, 330 (7th Cir. 2003). In other words, allegations of past injury or harm are
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insufficient, see id., as are vague and conclusory assertions of harm, see White v.
Colorado, 157 F.3d 1226, 1231 (10th Cir. 1998). To fall within the exception, the
Complaint must therefore contain “specific fact allegations of ongoing serious physical
injury, or of a pattern of misconduct evidencing the likelihood of imminent serious
physical injury.” Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003) (emphasis
added).
Therefore, on February 22, 2012, the Court directed Mr. Custard to show cause
why he should not be denied leave to proceed in forma pauperis pursuant to 28 U.S.C.
§ 1915(g). The February 22 Order also directed Mr. Custard to file an amended
prisoner complaint that complied with Rule 8 of the Federal Rules of Civil Procedure and
alleged the personal participation of each named defendant. Mr. Custard filed a
response to the order to show cause and an amended complaint on March 9, 2012.
Mr. Custard asserts two claims in the amended complaint. As his first claim, he
asserts that he has been labeled as a “snitch” by prison staff in retaliation for grievances
he has filed. Amended Complaint at 8. Mr. Custard alleges that the named Defendants
have been calling him a “snitch” and a “rat” in front of other inmates for the past two
years. Id. at 10. He also alleges that the named Defendants “decided, desire and intent
[sic] . . . that Pltf [sic] actually be caused physical injury, maimed or killed, and indeed,
and in fact, Pltf [sic] has already been assaulted and seriously injured by other inmates
over these Def’s [sic] labelling [sic] Pltf [sic] ‘A Snitch’ . . . .” Id. at 13-14. Mr. Custard
does not provide any additional information regarding alleged assaults at the hands of
other inmates. As his second claim, Mr. Custard asserts that, in retaliation for
grievances he has filed, the named Defendants turn off his cell lights and refuse to
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move him to a lighted area. He alleges that this practice has been occurring since
November 3, 2010, and has occurred “dozens of times.” Id. at 17. He alleges that his
cell becomes “pitch black” which exposes him to hazardous condition. Id. at 15-17. He
further asserts that on November 9, 2010, when his lights were turned off, he fell over a
“broken . . . concrete desk top and seat and was seriously injured on jagged welds on
the metal in-cell shower directly resulting in fifteen (15) stitches to [his] left forearm and
back.” Id. at 18.
On April 23, 2012, the Court entered an order denying Mr. Custard leave to
proceed in forma pauperis. Specifically, the Court found that Mr. Custard failed to
provide any specific supporting factual allegations that would demonstrate he was in
danger of “ongoing serious physical injury”. Martin, 319 F.3d at 1050. Therefore, Mr.
Custard was directed to pay the $350.00 filing fee within thirty days. Mr. Custard was
warned that the action would be dismissed without further notice if he failed to submit
the $350.00 filing fee within the time provided.
Mr. Custard now seeks reconsideration of the order denying him leave to
proceed pursuant to 28 U.S.C. § 1915. With respect to his first claim, that prison
officials have labeled him a “snitch” in retaliation for grievances he has filed, Mr. Custard
argues that the prison officials’ “misconduct” in labeling him a “snitch” is sufficient, by
itself, to prove that he is in imminent danger of serious physical injury. Motion at 2. Mr.
Custard relies on Benefield v. McDowall, 241 F.3d 1267 (10th Cir. 2001) to support this
conclusion. In Benefield, the Tenth Circuit held that an inmate’s allegation that he had
been labeled a “snitch” was, by itself, sufficient to meet the standard for a violation of
the Eighth Amendment because it demonstrated that the inmate was “incarcerated
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under conditions posing a substantial risk of serious harm”. 241 F.3d at 1271. The
Tenth Circuit has further clarified that “allegations of a prison officer’s deliberate
disclosure of dangerous information about an inmate’s status are sufficient to state a
claim under the Eighth Amendment provided the alleged danger is facially concrete and
plausible enough to satisfy basic pleading standards.” Brown v. Narvais, 265 Fed.
Appx. 734, 736 (10th Cir. Feb. 19, 2008) (unpublished opinion).
However, the prisoners in the cases discussed above were not subject to
§1915(g) restrictions, like Mr. Custard. At this stage of review, instead of demonstrating
that he is at “substantial risk of serious harm”, which is the standard for an Eighth
Amendment claim, Mr. Custard must instead show that he is “under imminent danger of
serious physical injury.” 28 U.S.C. § 1915(g) (emphasis provided). The Court denied
Mr. Custard leave to proceed pursuant to § 1915(g) on the grounds that “Mr. Custard
alleges that he has been labeled a snitch by prison officials for over two years, and
there is no factual support in the record to demonstrate that he has been subject to any
on-going or serious harm as a result. He has failed to provided any ‘credible,
uncontroverted allegations of physical threats and attacks.’” Order Denying Leave to
Proceed In Forma Pauperis at p. 4 (citing White, 157 F.3d at 1050). Based on the
allegations Mr. Custard has provided in the Amended Complaint, the Court found that
Mr. Custard failed to establish that there was any imminent danger of serious physical
injury.
In the Motion to Reconsider, Mr. Custard again fails to identify any “credible,
uncontroverted allegations of physical threats and attacks.” White, 157 F.3d at 1050.
Although he discusses Benefield, this case is distinguishable from the case at hand
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because the Benefield plaintiff was not subject to § 1915(g) restrictions. Mr. Custard
fails to cite to any case within this circuit, and the Court’s research has revealed none,
which holds that the mere fact that a prisoner has been labeled a “snitch” by prison
officials establishes that he is under imminent danger of serious physical injury. Contra
Davis v. Rice, 2008 WL 2397570, at *1 (D. Colo. June 10, 2008) (unpublished opinion)
(holding that because prisoner who was subject to § 1915(g) restrictions failed to
identify any “ongoing, real, or proximate threat to his personal safety from being
allegedly identified by staff as a prisoner informant some seven months earlier, there is
no evidence that plaintiff is or will be subject to serious physical harm if he is not
granted leave to proceed without prepayment of the district court filing fee”). Therefore,
Mr. Custard has again failed to establish an exception to the “3-strike” provision in
§ 1915.
Likewise, with respect to Mr. Custard’s second claim, in which he asserts that
prison officials turn off the lights in his cell, he fails to identify anything other than
allegations of past harm, which are insufficient to meet the requirements of § 1915(g).
Therefore, Mr. Custard has not asserted any of the major grounds that would
justify reconsideration in his case, and the motion to reconsider will be denied. See
Servants of the Paraclete, 204 F.3d at 1012. Mr. Custard must pay the full $350.00
filing fee pursuant to 28 U.S.C. § 1914(a) if he wishes to pursue his claims in this action.
The Court will provide Mr. Custard additional time to submit the $350.00 filing fee, but
Mr. Custard is warned that his failure to pay within the time provided will result in the
dismissal of this action without further notice. The Court will not review any further
motions to reconsider; instead, the only proper filing at this time is payment of the
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$350.00 filing fee. Accordingly, it is
ORDERED that “Plaintiff’s Motion for Reconsideration of and/or Relief From the
4/23/12 Order,” (Doc. # 14) is DENIED. It is
FURTHER ORDERED that Mr. Custard 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. Custard fails to pay the entire $350.00 filing fee
within the time allowed, the amended complaint and the action will be dismissed without
further notice. It is
FURTHER ORDERED that the only proper filing at this time is the payment of the
$350.00 filing fee.
DATED at Denver, Colorado, this 7th day of
May
, 2012.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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