Lynn (ID 64377) v. McCurrie et al

Filing 19

ORDER ENTERED: Plaintiff's motion to proceed in forma pauperis 3 is denied. Plaintiff's Motion to Proceed Under 28 U.S.C. § 1915(g)/Imminent Danger of Serious Physical Injury 6 is denied. Plaintiff is granted until July 31, 2017 , to submit the $400.00 filing fee. The failure to submit the fee by that date will result in the dismissal of this matter without prejudice and without additional prior notice. Signed by District Judge J. Thomas Marten on 07/17/17. Mailed to pro se party Patrick C. Lynn by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

PATRICK C. LYNN,
Plaintiff,
v.

CASE NO. 17-3041-JTM-DJW

ANTHONY McCURRIE, et al.,
Defendants.

ORDER
Plaintiff, Patrick C. Lynn, is a prisoner currently housed at Lansing Correctional Facility
in Lansing, Kansas (“LCF”). At the time of filing, Plaintiff was incarcerated at the Hutchinson
Correctional Facility in Hutchinson, Kansas (“HCF”). Plaintiff filed this civil rights action under
42 U.S.C. § 1983 against various KDOC staff members and Corizon employees alleging “23
criminal batteries/excessive use of force in violation of Plaintiff’s 8th Amendment rights that
occurred between 3/18/15 through 5/11/16”; deliberate indifference to his life-threatening
medical condition; and retaliation. Plaintiff names ninety-seven defendants by name and an
additional fifteen John or Jane Doe defendants.
Plaintiff has filed a motion to proceed in forma pauperis (Doc. 3). Plaintiff is subject to
the “three-strikes” provision under 28 U.S.C. § 1915(g). Court records fully establish that
Plaintiff “has, on 3 or more prior occasions, while incarcerated . . . , brought an action or appeal
in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or

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fails to state a claim upon which relief may be granted.”1 Accordingly, he may proceed in forma
pauperis only if he establishes a threat of imminent danger of serious physical injury. Id.
“To meet the only exception to the prepayment requirement, a prisoner who has accrued
three strikes must make ‘specific, credible allegations of imminent danger of serious physical
harm.’” Davis v. GEO Group Corr., ___ F. App’x ___, 2017 WL 2260944, at *2 (10th Cir.
May 23, 2017) (unpublished) (quoting Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172, 1179
(10th Cir. 2011)). The prisoner “should identify at least the general nature of the serious
physical injury he asserts is imminent,” and “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.” Id. (quoting Hafed, 635 F.3d at 1180). “Vague and utterly conclusory assertions are
insufficient.” Id. The harm must be imminent or occurring at the time the complaint is filed,
“allegations of past harm do not suffice.” Id. (citations omitted).
Plaintiff argues that he is in imminent danger of serious physical injury. In support,
Plaintiff has filed a Motion to Proceed Under 28 U.S.C. § 1915(g)/Imminent Danger of Serious
Physical Injury (Docs. 6, 7); a Notice of Imminent Dangers of Serious Physical Injuries Suffered
as Predicted & Ongoing Affidavit (Doc. 10); and a supplement titled “Additional Evidence of
Imminent Danger of Serious Physical Injuries (Doc. 13).2
As documented by the Court in Plaintiff’s previous cases, Plaintiff is a highly litigious
Kansas inmate. See Lynn v. Patty, No. 16-3254-JTM, Doc. 12 (Feb. 28, 2017); Lynn v. Kansas,
No. 16-3089-JTM, Doc. 18 (Aug. 5, 2016). Many of Plaintiff’s concerns in the instant case, as
set forth in his motion at Doc. 6, stemmed from his apprehension regarding his upcoming
1

See, e.g., Lynn v. McClain, 12 F. App’x 676, 679 (10th Cir. 2001) (noting that Lynn’s “past civil filings have
subjected him to the ‘three strike’ provisions.”); Lynn v. McClain, 162 F.3d 1173 (10th Cir. 1998) (finding that Lynn
“now has a total of six strikes against him”).
2
The Court notes that several of Plaintiff’s pleadings claim that this Court’s rulings show judicial bias. However,
Plaintiff has not filed a proper motion to recuse and prior rulings are not grounds for recusal.
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transfer back to LCF. Several of Plaintiff’s arguments do not involve physical injury, e.g., his
arguments regarding destroyed documents, lack of access to the courts, and confinement in a
slam cell. With respect to physical injury, he claims that he will be subjected to instances of
excessive force that will exacerbate his heart condition and that he is in imminent danger of
serious physical injuries because he may suffer a “crippling stroke” arising from his ongoing
multiple heart attacks or be subject to a fatal heart attack “at any time.” (Doc. 6, at 2– 4.)
Plaintiff was transferred to LCF around April 5, 2017. 3 On April 17, 2017, he filed his
“Notice of Imminent Dangers of Serious Physical Injuries Suffered As Predicted & Ongoing
Affidavit.” (Doc. 10.) Plaintiff asserts that his transfer back to LCF is part of a process whereby
he is transferred between three prison disciplinary segregation units every 100 to 120 days. Id. at
1. Plaintiff claims that upon his arrival at LCF he was again subjected to excessive force when
he refused to voluntarily enter a slam cell. Plaintiff claims the incident caused him to suffer
“another medical emergency/heart attack – chest pains” causing him to be admitted to the
infirmary and then to be taken by ambulance to the ICU at Providence Hospital on April 8, 2017,
due to a troponin enzyme test level more than four times the normal range. Id. at 2. Plaintiff
states that “[he] was treated w/substantial pain meds, heart meds & IV’s, & multiple tests to
reduce [his] ‘Traporin’ enzyme level & ‘calm’ [his] heart spasm pains, & discharged 3 days later
& re-admitted to the LCF Infirmary.”

Id.

Plaintiff’s subsequent pleadings show that he

remained in the LCF infirmary through May 18, 2017. See Doc. 17.
Plaintiff fails to show that he is in imminent danger of serious physical injury. His claims
are conclusory and fail to contain “specific, credible allegations of imminent danger of serious
physical harm.” Plaintiff’s own pleadings show that he is receiving medical care and ongoing
3

Plaintiff filed a notice of address change with the Court (Doc. 9) indicating that he was housed at LCF as of
April 5, 2017.
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treatment and monitoring.4 See White v. Colorado, 157 F.3d 1226, 1232 (10th Cir. 1998)
(considering prisoner’s treatment in concluding he had not raised a “credible allegation” of
imminent danger.) In Plaintiff’s previous action, the Court noted with regard to Plaintiff’s heart
condition that he “is simply using a pre-existing health condition to resurrect a claim previously
dismissed by the court in Case No. 16-3089-JTM.” Lynn v. Patty, No. 16-3254-JTM, Doc. 12 at
2 (Feb. 28, 2017). Furthermore, Plaintiff’s pleadings show that the incidents he complains about
are triggered by his failure to follow orders, his disruptive behavior and his disrespectful attitude
toward staff.5 The Court has noted in Plaintiff’s previous cases that his “filings are even more
abusive than those of the typical three-striker because he uses lawsuits and grievances in
attempts to manipulate, intimidate and harass others.” Lynn v. Peltzer, No. 16-3096-JTM-DJW,
Doc. 37 at 9 (July 29, 2016) (noting that Lynn has repeatedly threatened prison officials and
employees with lawsuits and has filed lawsuits in an attempt to coerce and harass them to meet
his demands to provide the changes or attention he deems necessary).
The Court has examined the Complaint and the various other pleadings filed by Plaintiff
in this case, and finds that Plaintiff has failed to establish a threat of imminent danger of serious
physical injury. Accordingly, pursuant to § 1915(g) Plaintiff may not proceed in forma pauperis

4

See, e.g., Doc. 6, at 1 (Plaintiff admitted to the ICU at the US Heart Hospital in Wichita on November 13, 2016);
Doc. 10, at 1 (noting he was given three nitro tablets); Id. at 2 (noting he was admitted to the prison infirmary and
then transferred by ambulance to the ICU at Providence Hospital on April 8, 2017, where he was treated with
substantial pain medication, heart medications and IV’s); Id. at 3 (noting he was taken to the infirmary, assessed by
nurses, given multiple nitro pills and readmitted to the infirmary); Id. at 4 (noting he met with a mental health
doctor, and was scheduled for shoulder x-rays and MRI recommendations/surgery).
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See, e.g., Doc. 10, at 1 (noting he refused to voluntarily enter the slam cell and referring to the Seg. Unit Manager
as a “lesbian dyke”); Id. at 4 (referring to mental health staff as an idiot and moron and stating that Plaintiff
promised him that he would throw urine on him the first chance he got since he was “such a pissant imbecile”); Id.
(noting that he intended to throw urine on the “lesbian dyke” or the warden, but he threw it on the imbecile that
showed up instead); Doc. 13, at 3 (stating that he refused an EKG and called staff an “evil bastard”).
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in this civil action. Plaintiff is given time to pay the full $400.00 district court filing fee6 to the
Court. If he fails to pay the full fee within the prescribed time, the Complaint will be dismissed
based upon Plaintiff’s failure to satisfy the statutory district court filing fee required by 28 U.S.C.
§ 1914.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s motion to proceed
in forma pauperis (Doc. 3) is denied.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Proceed Under 28 U.S.C.
§ 1915(g)/Imminent Danger of Serious Physical Injury (Docs. 6) is denied.
IT IS FURTHER ORDERED that Plaintiff is granted until July 31, 2017, to submit the
$400.00 filing fee. The failure to submit the fee by that date will result in the dismissal of this
matter without prejudice and without additional prior notice.
IT IS SO ORDERED this 17th day of July, 2017, in Wichita, Kansas.

s/ J. Thomas Marten
J. THOMAS MARTEN
U. S. District Judge

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If a person is not granted in forma pauperis status under § 1915, the fee to file a non-habeas civil action includes
the $350.00 fee required by 28 U.S.C. § 1914(a) and a $50.00 general administrative fee pursuant to § 1914(b) and
the District Court Miscellaneous Fee Schedule prescribed by the Judicial Conference of the United States.
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