Williams v. Murry et al

Filing 18

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 11/13/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-01207-BNB
SIRRLOVE R. WILLIAMS, living breathing man,
Plaintiff,
v.
Q. MARY, Assistant Warden,
PAUL K. PATSY, Head of Programs,
KELLY LEHMAN, Unit Manager,
ELISHAA JUAREZ, Unit Manager,
KURT HAMMEL, Investigator,
MS. MAINE, P.P.M.U.,
JOHN DOE, D.O.C. Director,
CARLA FARACI, Head Case Manager, and
BIRD KELLIE, Instructor,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Sirrlove Reese Williams, was a prisoner in the custody of the Colorado
Department of Corrections at the Cheyenne Mountain Re-Entry Center in Colorado
Springs, Colorado, when he filed pro se on June 3, 2014, a Prisoner Complaint
pursuant to 42 U.S.C. § 1983 (ECF No. 10) for money damages and injunctive relief.
He later informed the Court that he had been transferred to the Four Mile Correctional
Center. See ECF No. 15 at 2. On July 2, 2014, Mr. Williams was granted leave to
proceed pursuant to 28 U.S.C. § 1915 without payment of an initial partial filing fee.
ECF No. 13.
After initial review of the Prisoner Complaint, the Court issued an order on July 3,
2014 (ECF No. 14), directing Plaintiff to file an amended Prisoner Complaint on the

Court-approved form that complied with the pleading requirements of Rule 8 of the
Federal Rules of Civil Procedure and asserted the personal participation of each named
Defendant. On July 24, 2014, Mr. Williams filed an amended Prisoner Complaint (ECF
No. 15).
On October 7, 2014, the Court entered an order directing Mr. Williams to show
cause within thirty days why the July 2 order granting him leave to proceed in forma
pauperis status should not be revoked pursuant to 28 U.S.C. § 1915(g) because, on
three or more prior occasions, he has brought an action while incarcerated that was
dismissed on the grounds that it failed to state a claim upon which relief may be
granted. See Williams v. Laber, No. 09-cv-00886-ZLW (D. Colo. May 29, 2009) (ECF
No. 10) (dismissed in part as legally frivolous and in part pursuant to Heck v. Humphrey,
512 U.S. 477 (1994), and Younger v. Harris, 401 U.S. 37 (1971)); Williams v. City &
County of Denver, No. 10-cv-02177-MSK-KLM (D. Colo. Sept. 16, 2011) (ECF No. 25)
(dismissed pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim); and Williams
v. Laber, No. 10-cv-02798-ZLW (D. Colo. Mar. 11, 2011) (ECF No. 12) (dismissed
pursuant to Heck). Each of these dismissals qualifies as a “strike” under 28 U.S.C. §
1915(g). See Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172, 1176-77 (10th Cir.
2011).
Mr. Williams alleged that he was in imminent danger of serious physical injury
because “staff have create a hostil [sic] invironment [sic] where inmate [sic] are
assualted [sic] almost daily.” See ECF No.11 at 2. 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). To fall within the
exception, Mr. Williams’ pleadings must contain “specific fact allegations of ongoing
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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). Mr. Williams did not assert facts in the Prisoner Complaint he
originally filed on June 3 or the amended Prisoner Complaint he filed on July 24 that set
forth a claim of current, ongoing, serious physical injury to him or likelihood of imminent
serious physical injury to him.
The Court, therefore, found that Mr. Williams had initiated three or more actions
that count as “strikes” pursuant to 28 U.S.C. § 1915(g) and that he was not under
imminent danger of serious physical injury. The October 7 order to show cause
informed him that pursuant to § 1915(g) he should be precluded from bringing the
instant action in forma pauperis, and directed him to show cause within thirty days why
the July 2 order granting him leave to proceed pursuant to § 1915 should not be
vacated and his in forma pauperis status revoked.
The copy of the October 7 order mailed to Mr. Williams was returned to the Court
on October 14, 2014, as undeliverable because Mr. Williams had been paroled. See
ECF No. 17. Mr. Williams has failed to show cause as directed, file a notice of change
of address, or otherwise communicate with the Court in any way. Therefore, the
amended Prisoner Complaint and the action will be dismissed without prejudice for
failure to prosecute.
Finally, the Court certifies pursuant to § 1915(a)(3) that any appeal from this
order would not be taken in good faith and therefore in forma pauperis status will be
denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Mr. Williams files a notice of appeal he also must pay the full $505.00
appellate filing fee or file a motion to proceed in forma pauperis in the United States
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Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App.
P. 24.
Accordingly, it is
ORDERED that the amended Prisoner Complaint (ECF No. 15) and the action
are dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil
Procedure for the failure of Plaintiff, Sirrlove Williams, to prosecute. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. It is
FURTHER ORDERED that any pending motions are denied as moot. It is
FURTHER ORDERED that the clerk of the Court mail a copy of this order to Mr.
Williams at his last known address.
DATED November 13, 2014, at Denver, Colorado.
BY THE COURT:

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

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