Stine et al v. Bureau of Prisons et al
Filing
3
MEMORANDUM AND ORDER ENTERED: Plaintiff's motion 2 for leave to proceed in forma pauperis is denied. Plaintiff is granted to and including March 19, 2013, to submit the $350.00 filing fee to the clerk of the court. Signed by Senior District Judge Sam A. Crow on 2/19/2013. (Mailed to pro se party Mikeal Glenn Stine by regular mail.) (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MIKEAL GLENN STINE,
Plaintiff,
v.
CASE NO. 13-3002-SAC
BUREAU OF PRISONS/NORTH CENTRAL
REGIONAL OFFICE, et al.,
Defendants.
MEMORANDUM AND ORDER
This matter is a civil rights action filed pursuant to 28 U.S.C.
§ 1331. Plaintiff, a federal prisoner incarcerated in the United
States Penitentiary, Florence, Colorado, proceeds pro se and seeks
leave to proceed in forma pauperis.
Plaintiff is subject to 28 U.S.C. § 1915(g), a restriction in
the federal in forma pauperis statute that applies to a prisoner who
has filed three or more actions or appeals in federal court that were
dismissed as frivolous, malicious, or for failure to state a claim
upon which relief may be granted. A prisoner who has such prior
dismissals may not proceed in forma pauperis unless the prisoner
establishes “specific, credible allegations of imminent danger”.
Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172, 1176 (10th Cir. 2011).1
The court also notes that the U.S. District Court for the District
of Colorado has imposed prospective filing restrictions on the
1
In Stine v. Lappin, 2009 WL 2848849 (D.Colo.), the qualifying strikes were
identified as: Case Nos. 08-cv-581-PHX-PGR (MHB) (D. Ariz.)(dismissed for failure
to state a claim for relief); Case No. 07-cv-00102-ZLW (D.Colo.)(dismissed as
frivolous and malicious); Case No. 08-cv-00298-ZLW (dismissed as frivolous and
malicious); and Case No. 07-cv-00121-WYD-KLM (D.Colo.)(dismissed as malicious).
plaintiff that apply to any future complaint filed pro se. Stine v.
Lappin, 2009 WL 2848849, at *5 (D. Colo. Sep. 1, 2009).
In the present action, plaintiff claims the defendants developed
a plan implemented at the prison where he is incarcerated that
intentionally subjects him to exposure to hepatitis, tuberculosis,
and other infectious diseases. He also asserts that the Bureau of
Prisons (BOP) “uses mentally ill inmates to impose punishment on
non-mentally ill inmates.” (Doc. 1, p. 3B.)
Plaintiff describes his transfer to a segregation cell in
December 2012, and he states he has become sick and has been refused
a medical evaluation. (Id., p. 3D.)
Having considered the plaintiff’s allegations, however, the
court is not persuaded that he should be allowed to proceed in forma
pauperis. In the Tenth Circuit, a prisoner who seeks to overcome the
bar of § 1915(g) “should make a ‘specific reference as to which of
the defendants may have denied him what medication or treatment for
what ailment on what occasion’” Stine v. U.S. Federal Bureau of
Prisons, 465 Fed.Appx. 790, 793 (10th Cir. 2012)(quoting Hafed, 635
F.3d at 1180 (internal citation omitted)). Not only does plaintiff
fail to make the detailed factual allegations required, it does not
appear that the defendants within the jurisdiction of this court are
those in charge of the day-to-day custodial care of the plaintiff.
Likewise, while plaintiff alleges that he became ill and had
difficulty breathing (Doc. 1, ex. 2, Stine declaration , p. 1.), it
does not appear that he is in imminent danger, as contemplated by 28
U.S.C. § 1915(g). Compare Stine v. U.S. Federal Bureau of Prisons,
2013 WL 71187 (10th Cir. 2013)(upholding denial of in forma pauperis
status for plaintiff’s failure to comply with filing restrictions,
although plaintiff alleged denial of medical treatment for an eye
disease,
skin
infection,
and
a
“life-threatening
acid
reflux
condition”).
IT IS, THEREFORE, BY THE COURT ORDERED plaintiff’s motion for
leave to proceed in forma pauperis (Doc. 2) is denied. Plaintiff is
granted to and including March 19, 2013, to submit the $350.00 filing
fee to the clerk of the court.
A copy of this order shall be transmitted to the plaintiff.
IT IS SO ORDERED.
DATED:
This 19th day of February, 2013, at Topeka, Kansas.
S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge
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