Simmons v. Clements et al

Filing 11

ORDER Denying Leave to Proceed Pursuant to 28 U.S.C. § 1915. ORDERED that the Prisoner's Motions and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 3 is denied. Mr. Simmons shall have thirty days from the date of th is Order to pay the entire $350.00 filing fee if he wishes to pursue his claims in this action. If Mr. Simmons fails to pay the entire $350.00 filing fee within the time allowed, the Complaint and the action will be dismissed without furt her notice. The only proper filing at this time is the payment of the $350.00 filing fee. ECF No 10 is a Response and not a Motion to Show Cause. The Clerk of the Court is directed to discharge the Motion, by Judge Lewis T. Babcock on 4/4/13. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-03366-BNB
LEO SIMMONS,
Plaintiff,
v.
TOM CLEMENTS, Executive Director (CDOC),
JAMES FALK, Warden, Sterling Correctional Facility, and
ANDREA WILSON, Time and Release/Tech III,
Defendants.

ORDER DENYING LEAVE TO PROCEED PURSUANT TO 28 U.S.C. § 1915

Plaintiff, Leo Simmons, a pro se prisoner litigant, is in the custody of the Colorado
Department of Corrections (DOC) and currently is held at the correctional facility in
Sterling, Colorado. Mr. Simmons initiated this action by filing a Prisoner Complaint and
a Prisoner’s Motion and Affidavit. On February 25, 2013, Magistrate Judge Boyd N.
Boland entered an Order directing Mr. Simmons to show cause why he should not be
denied leave to proceed pursuant to 28 U.S.C. § 1915 because he is subject to filing
restrictions under 28 U.S.C. § 1915(g). Mr. Simmons filed a Response on March 14,
2013.
For the reasons stated below, Mr. Simmons will be denied leave to proceed
pursuant to § 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 noted in the Order to Show Cause that
on three or more prior occasions Mr. Simmons has brought an action that was
dismissed because it failed to state a claim upon which relief may be granted. See
Simmons v. Suthers, et al., 99-cv-01228-RPM (D. Colo. June 2, 2000) appeal
dismissed, No. 00-1249, 2001 WL 497369 (10th Cir. May 10, 2001) (dismissing the
appeal on the ground that it is frivolous; counts as a strike for purposes of § 1915(g))
(not selected for publication); Simmons v. Suthers, 99-cv-00921-ZLW (D. Colo. Sept. 28,
1999) appeal dismissed, No. 99-1472, 2000 WL 377470 (10th Cir. Apr. 12, 2000)
(district court dismissal construed as one under 28 U.S.C. § 1915(e)(2)(B)(ii) for failing
to state a claim) (not selected for publication); Simmons v. No Named Defendant, No.
99-cv-01223-ZLW (D. Colo. Aug. 10, 1999) appeal dismissed, No. 99-1395, 1999 WL
1243082 (10th Cir. Dec. 21, 1999) (dismissing the appeal on the ground that it is
frivolous; counts as a strike for purposes of § 1915(g)) (not selected for publication).
Each of the dismissals in the above-noted cases qualify as a strike under § 1915(g).
See Hafed v. Fed. Bureau of Prisons, et al., 635 F.3d 1172 (10th Cir. 2011). This Court
agrees with Magistrate Judge Boland’s finding.
In the Response, Mr. Simmons asserts that he is in imminent danger because (1)
he has been placed in a cell with lifer prisoners; (2) he has been held past his statutory
discharge date; (3) the S.O.R.T. team and Sergeant Ladd made him lay naked on the
floor and would not allow him to move or he would be killed; and (4) the Court acts as an
advocate for the DOC and the Attorney General’s Office.
Mr. Simmons is required to provide “specific fact allegations of ongoing serious

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physical injury, or 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). Vague or conclusory allegations of harm are insufficient. White v. Colorado,
157 F.3d 1226, 1231-32 (10th Cir. 1998). Mr. Simmons claims are conclusory and
vague. Therefore, because he fails to assert within any specificity that he is in imminent
danger of serious physical injury and because he has filed at least three actions in a
federal court that have been dismissed as legally frivolous or for failure to state a claim
his § 1915 Motion will be denied.
If Mr. Simmons wishes to pursue his claims in this action he must pay the
$350.00 filing fee pursuant to 28 U.S.C. § 1914(a). Mr. Simmons is reminded that, even
if he pays the filing fee in full, a review of the merits of his claims is subject to 28 U.S.C.
§ 1915(e)(2), and the action may be dismissed notwithstanding any filing fee if the
claims are found to be frivolous or malicious, lacking in merit, or asserted against a
defendant who is immune from suit. Accordingly, it is
ORDERED that the Prisoner’s Motions and Affidavit for Leave to Proceed
Pursuant to 28 U.S.C. § 1915, ECF. No. 3, is denied. It is
FURTHER ORDERED that Mr. Simmons shall have thirty 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. Simmons fails to pay the entire $350.00 filing
fee within the time allowed, the 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. It is

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FURTHER ORDERED that ECF No. 10 is a Response and not a Motion to Show
Cause. The Clerk of the Court is directed to discharge the Motion.
DATED April 4, 2013 at Denver, Colorado.
BY THE COURT:

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

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