Davis v. United States District Court for the District of Kansas

Filing 18

ORDER ENTERED: Plaintiff's motion 17 for leave to proceed in forma pauperis on appeal is denied. Signed by Senior District Judge Sam A. Crow on 3/7/2012. (Mailed to pro se party Anthony L. Davis by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ANTHONY LEROY DAVIS,
Plaintiff,
v.

CASE NO. 11-3135-SAC

UNITED STATES DISTRICT COURT,
DISTRICT OF KANSAS,
Defendant.

O R D E R
Plaintiff, a prisoner incarcerated in a state correctional
facility in Kansas, initiated this action with a pro se pleading
titled as a “COMPLAINT ON AN ACCOUNT.” Plaintiff appeared to be
seeking certification to the United States Attorney General pursuant
to 28 U.S.C. § 2403, challenging the amounts owed and paid in filing
fees for his previous actions and appeals in federal court, and/or
challenging the constitutionality of the “3-strike” provision in 28
U.S.C. § 1915(g).
Plaintiff is a “3-strike” litigant subject to 28 U.S.C. §
1915(g).

Finding no showing that plaintiff was subject to an

imminent risk of serious physical injury, the court denied plaintiff
leave to proceed in forma pauperis in district court, and dismissed
the complaint without prejudice based upon plaintiff’s failure to
pay the $350.00 district court filing fee.

Before the court is

plaintiff’s pro se document which the court liberally construes as
plaintiff’s motion for leave to proceed in forma pauperis on appeal.
Plaintiff broadly states in his motion that he is “under
imminent danger of serious physical injury or death.”

To support

this statement plaintiff cites the denial of his requests for

specific medications and tests, and his understanding that he may be
in the process of being transferred from his current correctional
facility “before compliance with the writ can be enforced.”

These

general and speculative allegations are insufficient to satisfy the
imminent harm exception to 28 U.S.C. § 1915(g).

See Strope v.

Cummings, 653 F.3d 1271, 1273 (10th Cir.2011)(“specific, credible
allegations of imminent danger” are necessary to avoid prepay
requirement

in

§

1915(g))(quoting

Hafed

v.

Federal

Prisons, 635 F.3d 1172, 1176 (10th Cir.2011)).

Bureau

of

Moreover, the

complaint in this matter involved no allegation of being denied
medical

care,

and

no

challenge

to

plaintiff’s

transfer

to

a

different state facility, thus plaintiff’s appeal does not encompass
either of those issues.

See Pettus v. Morgenthau, 554 F.3d 293, 297

(2nd Cir.2009)(“there must be a nexus between the imminent danger a
three-strikes prisoner alleges to obtain IFP status and the legal
claims asserted in his complaint”).
The court thus finds plaintiff has made no showing that
satisfies the imminent harm exception in § 1915(g) for purposes of
allowing plaintiff to proceed in forma pauperis in the present
appeal.
IT IS THEREFORE ORDERED that plaintiff’s motion for leave to
proceed in forma pauperis on appeal (Doc. 17) is denied.
IT IS SO ORDERED.
DATED:

This 7th day of March 2012 at Topeka, Kansas.

s/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge

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