Galloway v. Fernando et al

Filing 8

ORDER ENTERED: Plaintiff's application 2 for leave to proceed in forma pauperis is denied. Plaintiff is granted twenty (20) days in which to submit the $350.00 filing fee. The failure to pay the full filing fee within that time will result in the dismissal of this action without prejudice. Plaintiff's motion 4 to appoint counsel is denied. Signed by Senior District Judge Sam A. Crow on 9/12/2011. (Mailed to pro se party Louis G. Galloway, Sr. by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

LOUIS G. GALLOWAY, Sr.,
Plaintiff,
v.

CASE NO.

11-3153-SAC

(fnu) Fernando,
et al.,
Defendants.
O R D E R
This civil complaint was filed by an inmate of the Larned
Correctional Mental Facility, Larned, Kansas (LCMF).

Plaintiff has

also filed a motion for leave to proceed in forma pauperis (IFP) and
a motion for appointment of counsel.

Plaintiff alleges that he is

being forced to receive psychotropic drugs against his will after a
“forced involuntarily medication hearing” in which he allegedly was
denied due process.

He seeks money damages and an order “telling

these people to stop it.”

Having considered the complaint, the IFP

motion, and three Supplements submitted by plaintiff containing over
200 pages, the court finds as follows.
Section 1915(g) of 28 U.S.C. 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 that 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.
Id. In Galloway v. Hadl, 07-3016-EFM (D.Kan. Sept. 1, 2009) the
court, in denying Mr. Galloway’s motion for leave to appeal in forma
pauperis, found as follows:

Having reviewed plaintiff’s litigation history in the
District of Kansas, the court finds plaintiff has acquired
at least three “strikes” prior to filing his notice of
appeal in the instant case, and thus is subject to the
“3-strike” provision in 28 U.S.C. § 1915(g).
Because
plaintiff does not allege, and the record on its face does
not suggest, the “danger of imminent harm” exception in 28
U.S.C. § 1915(g) is satisfied in this case, the court
denies plaintiff’s motion for leave to proceed in forma
pauperis on appeal.
The court cited the following prior occasions: Galloway v. Lawrence
Journal World, 10th Cir. Appeal No. 07-3111 (appeal dismissed as
frivolous)(November 29, 2007); Galloway v. Lawrence Journal World,
Case No. 07-3045-SAC (complaint dismissed as stating no claim for
relief)(April 6, 2007); Galloway v. Nye, Case No. 95-3410-GTV
(complaint dismissed as stating no claim for relief)(1995); see also
Green v. Nottingham, 90 F.3d 415, 418 (10th Cir. 1996)(“3-strike”
provision in § 1915(g) applies to pre-PLRA actions dismissed as
malicious or frivolous).

Mr. Galloway has thus been established as

a three-strikes litigant under § 1915(g).

He is therefore required

to “pay up front for the privilege of filing . . . any additional
civil actions,” unless he can show “imminent danger of serious
physical injury.”

28 U.S.C. 1915(g); Jennings v. Natrona County

Detention Center, 175 F.3d 775, 778 (10th Cir. 1999).
Plaintiff does not allege facts in connection with his motion
to proceed IFP that show he is entitled to proceed IFP.

None of the

facts alleged by plaintiff in his complaint and supplements suggest
that he is in imminent danger of serious physical injury.
allegations

that

he

is

being

required

to

take

His

psychotropic

medication pursuant to a hearing, taken as true, do not establish
that

he

is

in

imminent

danger

of

serious

physical

injury.

Accordingly, Mr. Galloway may proceed in this action only if he pays
2

the filing fee of $350.00 for filing a civil complaint.
Plaintiff is not entitled to appointment of counsel in a civil
action, and counsel is not warranted in this case as it is subject
to being dismissed.
IT

IS

THEREFORE

BY

THE

COURT

ORDERED

that

plaintiff’s

application for leave to proceed in forma pauperis (Doc. 2) is
denied; he is granted twenty (20) days in which to submit the
$350.00 filing fee; and failure to pay the full filing fee within
that time will result in the dismissal of this action without
prejudice.
IT IS FURTHER ORDERED that plaintiff’s Motion to Appoint
Counsel (Doc. 4) is denied.
IT IS SO ORDERED.
Dated this 12th day of September, 2011, at Topeka, Kansas.

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

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