Evans (ID 67355) v. LNU (1) et al

Filing 3

ORDER granting plaintiff 20 days to show cause why his motion for leave to proceed in forma pauperis should not be denied pursuant to 28 U.S.C. § 1915(g), or pay the full $350.00 district court filing fee. Signed by District Judge Sam A. Crow on 10/18/2012. Mailed to pro se party Delarick Evans by regular mail. (ms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DELARICK EVANS,
Plaintiff,
v.

CASE NO. 12-3202-SAC

SECRETARY OF HEALTH AND
HUMAN SERVICES, et al.,
Defendants.

O R D E R
This matter comes before the court on a civil complaint filed
pro se by a prisoner incarcerated in the Lansing Correctional Facility
(LCF) in Kansas.

Also before the court is a plaintiff’s motion for

leave to proceed in forma pauperis in this matter without prepayment
of the $350.00 district court filing fee.
The two defendants named in the complaint are the United States
Secretary of Health and Human Services, and the Director of Indian
Health Services.

Plaintiff seeks damages and injunctive relief on

allegations that defendants breached their fiduciary duty of care to
provide

health

care

services

to

him

as

a

Native

American,

notwithstanding his present incarceration.
As amended by the Prison Litigation Reform Act (PLRA) in 1996,
§ 1915 provides that a prisoner bringing a civil action or appeal in
federal court must pay the full filing fee, but may do so over time
if granted leave to proceed in forma pauperis.
1915(b)(1)-(2).

28 U.S.C. §

The PLRA amendments also include a “3-strike”

provision that reads:
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).
This provision does not bar a prisoner with three strikes from
filing civil actions, but operates to eliminate the privilege to
proceed in forma pauperis.

A prisoner who has three strikes may still

proceed in civil actions or appeals by prepaying the full filing fee.
See Jennings v. Natrona County Detention Center Medical Facility, 175
F.3d. 775, 778 (10th Cir.1999); see also Medberry v. Butler, 185 F.3d.
1189, 1193 n.2 (11th Cir.1999)("We note that 28 U.S.C. § 1915(g) does
not deny prisoners the right of access to the courts; it merely
requires them to pay the filing fee immediately and in full rather
than on an installment plan.").
Having reviewed this court’s records, the court finds plaintiff
is subject to the “3-strike” provision in § 1915(g).
Plaintiff has filed cases in this court using both the name
“Delarick Evans” and an alias name of “Delarick Hunter.”

The Kansas

Department of Corrections (KDOC) Offender Search website 1 lists
“Delarick Hunter” as an alias name for plaintiff, and court records
reflect that all pleadings submitted by Delarick Evans and Delarick
Hunter bear the same prison identification number (KDOC #67355) for
the prisoner plaintiff.

1

See http://www.doc.ks.gov/public/kasper

Because plaintiff has filed at least three cases as “Delarick
Hunter” which were dismissed as legally frivolous or as stating no
claim for relief,

2

the court finds the “3-strike” bar in § 1915(g)

applies to bar plaintiff from proceeding in forma pauperis in this
civil action absent a showing that he is under imminent danger of
serious physical harm.

While no such showing of imminent physical

harm is evident on the face of the complaint, the court will allow
plaintiff a limited opportunity to make such a showing, or to pay the
$350.00 district court filing fee.

The failure to file a timely

response will result in petitioner’s motion for leave to proceed in
forma pauperis being denied, and the complaint being dismissed without
prejudice based upon plaintiff’s failure to satisfy the filing fee
required by 28 U.S.C. § 1914.
IT IS THEREFORE ORDERED that plaintiff is granted twenty (20)
days to show cause why his motion for leave to proceed in forma pauperis
should not be denied pursuant to 28 U.S.C. § 1915(g), or to pay the
full $350.00 district court filing fee.
IT IS SO ORDERED.
DATED:

This 18th day of October 2012 at Topeka, Kansas.

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

2

See Hunter v. Supreme Court of Kansas, Case No. 07-3037-SAC (legally
frivolous action seeking federal writ of mandamus over state officials); Hunter v.
State of Kansas, Case No. 08-3075-SAC (§ 1915(e)(2)(B) dismissal of § 1983 complaint
seeking damages and declaratory judgment on allegations regarding plaintiff’s
pending state court proceeding); Hunter v. McKune, Case No. 08-3111-SAC (§
1915(e)(2)(B) dismissal of § 1983 action seeking damages on allegations of error
in computation of state sentence).