Custard v. Allred et al
Filing
24
ORDER denying in part and granting in part 3 Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915, and denying both 21 Motion for Leave to Appeal and 23 Combined Objection and Motion, by Judge Lewis T. Babcock on 12/4/13.(dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-02296-BNB
BOB CUSTARD,
Plaintiff,
v.
DAVID ALLRED,
YVETTE BROUILLET-FETTERHOFF,
BUREAU OF PRISONS,
CHAVEZ,
MARK COLLINS,
CORDOVA,
ENCARARNANZE,
FIEF,
ANDREW FENLON,
B. KASDON,
KOCH-COULTER,
RICHARD MADISON,
PATRICIA RANGEL,
KENT WELLS,
C.A. WILSON,
YU,
PAUL ZOHN, and
ZONNO,
Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
LEAVE TO PROCEED PURSUANT TO 28 U.S.C. § 1915
Plaintiff, Bob Allen Custard, is in the custody of the Federal Bureau of Prisons at
the ADX Facility in Florence, Colorado. On August 26, 2013, Mr. Custard filed, pro se,
a Prisoner Complaint [Doc. # 1] and a Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 [Doc. # 3]. Magistrate Judge Boyd N. Boland
granted the § 1915 Motion on August 28, 2013 and directed Mr. Custard to file an
Amended Complaint. [Doc. # 4]. Plaintiff filed an Amended Complaint on October 10,
2013. [Doc. # 10].
After Mr. Custard was granted leave to proceed in form pauperis, a review of
Plaintiff’s filing history revealed that he has initiated three or more actions that count as
strikes pursuant to 28 U.S.C. § 1915(g). Magistrate Judge Boland thus vacated the
Order granting Plaintiff leave to proceed in forma pauperis on October 16, 2013. [See
Order, Doc. # 11]. Magistrate Judge Boland further directed Mr. Custard to show
cause, in writing and within thirty days, why he should not be denied leave to proceed
pursuant to § 1915 because he failed to meet the requirements of § 1915(g) for claims
two through eight of the Amended Complaint.
Section 1915(g) states:
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).
To satisfy the imminent danger exception, Mr. Custard must make “specific,
credible allegations of imminent-danger of serious physical harm.” Hafed v. Fed. Bureau
of Prisons, et al., 635 F.3d 1172, 1179 (10th Cir. 2011); see also Fuller v. Wilcox, 288 F.
App’x 509, 511 (10th Cir. 2008) (unpublished) (to fall within the exception, a prisoner
must make “specific fact allegations of ongoing serious physical injury, or of a pattern of
misconduct evidencing the likelihood of imminent serious physical injury.”) (citing 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,
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1231-32 (10th Cir. 1998). “Allegations of past harm do not suffice; 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).
Mr. Custard filed a Response to the Show Cause Order [Doc. # 22] on November
15, 2013. The Court has carefully reviewed Plaintiff’s statements in the Response,
together with his allegations in the Amended Complaint. Construing his pro se filings
liberally, the Court finds as follows.
A. Claims one, two, four and five
Mr. Custard has alleged sufficient facts to meet the imminent danger of serious
physical injury exception with respect to claims one, two, four and five of the Amended
Complaint. Plaintiff asserts that the Defendants are retaliating against him for filing
administrative remedies and are otherwise violating his Eighth Amendment rights by
(1) subjecting him to excessive noise in his prison cell, causing continuing hearing loss;
(2) denying him medical care for his Hepatitis C (from which he suffers almost daily
severe abdominal pain and vomiting with blood, as well as ongoing scarring of his liver);
(3) denying him medical care for a pre-existing injury (hand amputation) that now bleeds
constantly at the edges of the skin graft and is very painful; and, (4) denying him
necessary dental care for broken dentures, which are causing lacerations and bleeding
of his lower gums.1 See, e.g., Fletcher v. Menard Corr. Ctr., 623 F.3d 1171, 1173 (7th
Cir. 2010) (“[A]n untreated wound, like an untreated acute illness, could pose an
imminent danger of serious physical harm.”); McAlphin v. Toney, 281 F.3d 709, 710–11
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Mr. Custard emphasizes in his Response to the Show Cause Order that most of the factual
allegations contained in the Response were already alleged in the Amended Complaint. That may be so.
However, as the Court has admonished Plaintiff in the past, his hand-writing is very difficult to decipher
and the Court cannot discern all of his allegations. Mr. Custard is reminded that his hand-writing must be
legible so that the Court is able to consider his filings, in their entirety.
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(8th Cir. 2002) (holding that allegations that a prisoner needed tooth extractions to
prevent a possible infection were “sufficient as a matter of law” to make a showing of
“imminent danger”); Brown v. Johnson, 387 F.3d 1344, 1350 (11th Cir. 2004) (prisoner’s
allegations of “imminent danger of serious physical injury” were sufficient where the
prisoner suffered from the human immunodeficiency virus (“HIV”) and hepatitis, and his
doctor stopped his prescribed treatment, causing him to “suffer[ ] prolonged skin and
newly developed scalp infections, severe pain in the eyes and vision problems, fatigue
and prolonged stomach pains”); Fuller v. Myers, No. 04-3210, 123 F. Appx. 365,
367–68 (10th Cir. 2005) (unpublished) (prisoner's assertion “that he currently suffers
from breathing difficulties and other respiratory problems, apparently exacerbated by
the ventilation system where he is incarcerated,” was enough to “facially satisf[y] the
threshold requirement of showing that he is in ‘imminent danger of serious physical
injury’ within the meaning of 28 U.S.C. § 1915(g)”); Bond v. Aguinaldo, 228 F. Supp.2d
918, 919 (N.D. Ill. 2002) (allegation of serious and ongoing medical problems causing
severe pain was sufficient to demonstrate imminent danger of serious physical injury).
Therefore, the Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28
U.S.C. § 1915 will be granted with respect to claims one, two, four and five.
B. Claims three and eight
Claims three and eight of the Amended Complaint, when construed together,
meet the requirements of § 1915(g). In claim three, Mr. Custard alleges that
Defendants are denying him medical and psychological treatment for his diagnosed
circadian rhythm sleep disorder, a condition caused by the Defendants banging
repeatedly on his cell door on a nightly basis. Plaintiff alleges that, as a result of
Defendants’ actions, he suffers from high blood pressure and has suffered numerous
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concussions from hitting his head against the concrete walls or floor of his cell in
confusion when he is awakened unexpectedly and feels terrified and threatened. In
claim eight, Mr. Custard alleges that Defendants are denying him medical treatment for
a nerve injury to his right arm and shoulder that constantly throbs with pain, or is numb,
and that was caused by a violent episode when he was awakened suddenly by the
Defendants’ misconduct.
An untreated psychological condition does not meet the imminent danger
exception. See, e.g., Davis v. Scott, No. 00-40401, 2000 WL 1835296, at *1 (5th Cir.
Nov. 29, 2000) (unpublished) (allegations that prisoner was suffering from mental
anguish and mental distress due to the defendants' violation of his constitutional rights
failed to meet requirements of § 1915(g)). Further, deprivation of sleep and high blood
pressure, without more, do not show that Plaintiff is in imminent danger of serious
physical injury. See, e.g., Warren v. United States, 106 Fed. Cl. 507 (Fed. Cl. 2012)
(sleep deprivation); Martin, 319 F.3d at 1050 (high blood pressure); see also Burghart v.
Corrections Corp. of Am., 350 F. App’x. 278, 279–80 (10th Cir. 2009) (unpublished)
(“[Plaintiff] alleges that he suffers ‘constant stress' due to the denial of his constitutional
rights and that he ‘has and could suffer’ migraines, ‘cardiovascular [problems],’
hypertension, fatigue and depression, a ‘suppressed immune system,’ memory loss,
psoriasis, weight gain, sleep disorders, and a shortened life expectancy. These
allegations are not credible: [plaintiff] has not explained how the rights violations alleged
in his original complaint will produce these injuries. He has merely asserted conclusory
allegations, which fail to satisfy § 1915(g).”).
However, Mr. Custard’s additional allegations in support of claims three and eight
– that Defendants’ actions in pounding nightly on his cell door are causing Plaintiff to
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awaken suddenly in a terrified state and cause serious harm to himself (a continuing,
untreated painful nerve injury to his right arm) – are sufficient to demonstrate a pattern
of ongoing misconduct showing a likelihood of imminent serious physical injury.
Therefore, the Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28
U.S.C. § 1915 will be granted with respect to claim three, as bolstered by the allegations
of claim eight.
C. Claims six and seven
By contrast, Mr. Custard has failed to state specific, credible allegations of
imminent danger of serious physical harm with regard to claims six and seven of the
Amended Complaint.
In claim six, Mr. Custard asserts that Defendants are forcing him to recreate
outside in extreme weather conditions. He alleges that he was placed outside in a wire
mesh cage, without overhead protection from the sun, for approximately three hours at
a time, when the heat index exceeded 110 degrees. Mr. Custard’s factual allegations in
support of claim six are vague because he fails to allege how often he was placed
outside in the wire recreation cage. Moreover, his conclusory allegations that he
suffered heat exhaustion and heat stroke in the past do not demonstrate that Plaintiff
was in imminent danger of serious physical harm. Unlike claims one through five, the
allegations in support of claim six do not show ongoing serious physical injury or a
pattern of misconduct evidencing the likelihood of serious physical injury.
In support of his seventh claim, Mr. Custard states that he was labeled a “snitch”
by prison officials and was “assaulted” by inmates on two prior occasions as a result of
the label – in April 2011 and March 2013. Mr. Custard does not allege that Defendants
have called him a “snitch” in front of other inmates since the March 2013 incident or that
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he has received any recent threats of physical harm, and he fails to describe specifically
the injuries that he sustained as a result of the alleged assault. Further, Plaintiff does
not state that the inmate who attacked him in 2013 was the same inmate who attacked
him in 2011. Mr. Custard’s allegation that he recreates at the same time as the inmate
who he claims “assaulted” him in March 2013 is not, without additional information,
enough to show a pattern of conduct evidencing the likelihood of imminent serious
physical injury. Cf. Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998) (finding
imminent danger where the inmate alleged that prison officials knowingly placed him
near those who are likely to attack him because the complaint alleged an ongoing
pattern of such placements and attacks and was filed “very shortly after the last attack”).
Past incidents, or a prisoner’s concerns about what might happen in the future do not
satisfy § 1915(g). Furthermore, Mr. Custard’s reliance on Benefield v. McDowell, 241
F.3d 1267, 1270-71 (10th Cir. 2001) is misplaced. Benefield did not address whether
the prisoner’s allegations in support of an Eighth Amendment failure to protect claim
met the requirements of § 1915(g), which requires a showing of imminent danger.
Therefore, because Mr. Custard fails to assert 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 either legally frivolous or for failure to state a claim, the
§ 1915 Motion will be denied with respect to claims six and seven of the Amended
Complaint. Further, Mr. Custard may not maintain a separate claim for relief in claim
eight. Instead, the allegations in claim eight will be construed to support of claim three.
If Mr. Custard wishes to pursue claims six and seven in this action, he must pay the
$400.00 filing fee pursuant to 28 U.S.C. § 1914(a). Mr. Custard’s § 1915 Motion will be
granted only with respect to claims one, two, three (as bolstered by the allegations of
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claim eight), four and five of the Amended Complaint. Accordingly, it is
ORDERED that the Prisoner’s Motion and Affidavit for Leave to Proceed
Pursuant to 28 U.S.C. § 1915 [Doc. # 3] is DENIED in part and GRANTED in part for
the reasons stated above. It is
FURTHER ORDERED that Mr. Custard shall have thirty days from the date of
this Order to pay the entire $400.00 filing fee to pursue claims six and seven of the
Amended Complaint. It is
FURTHER ORDERED that, if Mr. Custard fails to pay the entire $400.00 filing fee
within the time allowed, claims six and seven of the Amended Complaint will be
dismissed, and the Court will proceed to review the merits of claims one, two, three (as
bolstered by the allegations of claim eight), four and five only. It is
FURTHER ORDERED that for claims one, two, three, four and five, Plaintiff may
proceed in this action without payment of an initial partial filing fee. However, although
he need not pay an initial partial filing fee, Plaintiff remains obligated to pay the required
$350.00 filing fee (applicable to persons granted leave to proceed pursuant to 28 U.S.C.
§ 1915) through monthly installments regardless of the outcome of this action. Plaintiff
has consented to disbursement of partial payments of the filing fee from his prison
account. It is
FURTHER ORDERED that Plaintiff’s custodian shall disburse from Plaintiff’s
prison account monthly payments of 20 percent of the preceding month’s income
credited to this prison account until Plaintiff has paid the total filing fee of $350. See 28
U.S.C. §1915(b)(2). Interference by Plaintiff in the submission of these funds will result
in the dismissal of this action. It is
FURTHER ORDERED that Plaintiff is advised that notwithstanding any filing fee,
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or any portion thereof, that may have been paid, the Court shall dismiss at any time all
or any part of such complaint which (1) is frivolous or malicious; (2) fails to state a claim
on which relief can be granted; or (3) seeks monetary relief from a defendant who is
immune from such relief. See 28 U.S.C. §1915(A)(b); 28 U.S.C. § 1915(e)(2). It is
FURTHER ORDERED that the Court may dismiss this action and may apply all
or part of the filing fee payments tendered in this action to satisfy any filing fee debt
Plaintiff may owe in a prior action or actions if Plaintiff fails to stay current with his
payment obligations in the prior action or actions. It is
FURTHER ORDERED that “Plaintiff’s Motion for Leave to Appeal . . . “ [Doc.
# 21] is DENIED. Mr. Custard may not file an interlocutory appeal of the Order OverRuling Objection [of the Order Denying Motion for Recusal] [Doc. # 19]. See Nichols v.
Alley, 71 F.3d 347, 350 (10th Cir. 1995) (“An order denying a motion to recuse is
interlocutory and is, therefore, not immediately appealable.”); see also Fields v.
Walgreens Co., No. 10-1287, 410 F. App’x 168, 171 (10th Cir. Feb. 3, 2011)
(unpublished) (stating that a plaintiff may not appeal a district court order denying a
motion for recusal) (citing AdvantEdge Bus. Grp. v. Thomas E. Mestmaker & Assoc.,
Inc., 552 F.3d 1233, 1237 (10th Cir. 2009) (announcing a “prudential rule allowing the
appellate court to review an interlocutory order preceding a dismissal for failure to
prosecute in that rare case when it makes sense to do so.”). It is
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FURTHER ORDERED that Plaintiff’s Combined Objection . . . . and Motion [Doc.
# 23], filed on November 19, 2013, is DENIED for the reasons stated in the November
13, 2013 Order Over-Ruling Objection. Plaintiff is warned that any further objections or
motions on this issue will be stricken. It is
FURTHER ORDERED that Mr. Custard may not file another amended complaint
absent permission from the Court. It is
FURTHER ORDERED that process shall not issue until further order of the
Court.
DATED at Denver, Colorado, this 4th day of
December
, 2013.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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