Loggins (ID 63088) et al v. Norwood et al

Filing 79

MEMORANDUM AND ORDER ENTERED: Plaintiff's Motion for Reconsideration (Doc. 74 ) is denied. Plaintiff must pay the remainder of his $505 appellate filing fee to the Clerk of U.S. District Court if he wishes to proceed with his appeal, consistent with the court's March 12, 2020 Order. Signed by District Judge Daniel D. Crabtree on 03/30/20. Mailed to pro se party Kevin D. Loggins, Sr. by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

KEVIN D. LOGGINS, SR.,
Plaintiff,
Case No. 18-3016-DDC-KGG
v.
JOSEPH NORWOOD, et al.,
Defendants.

MEMORANDUM AND ORDER
On February 22, 2020, plaintiff Kevin D. Loggins, Sr. filed a motion for leave to appeal
in forma pauperis (Doc. 67). The court granted his motion (Doc. 69). Defendants Joseph
Norwood, Shannon Meyer, and Dan Schnurr then asked the court to reconsider its Memorandum
and Order, asserting that plaintiff is a three-strikes litigant who is prohibited from proceeding in
forma pauperis under 28 U.S.C. § 1915(g). Doc. 70 at 1. The court agreed with defendants.
Plaintiff is a three-strikes litigant. Doc. 72 at 1. The court thus granted defendants’ Motion for
Reconsideration (Doc. 70) and vacated its Memorandum and Order granting plaintiff’s Motion
for Leave to Appeal in forma pauperis (Doc. 69). Doc. 72. Plaintiff now has filed a Motion for
Reconsideration (Doc. 74).
Plaintiff’s Motion asks the court to reconsider its Memorandum and Order denying him
permission to proceed with his appeal in forma pauperis. Doc. 74 at 2. Plaintiff asserts that the
three-strikes rule applies only to litigants who previously have proceeded in forma pauperis three
times. Id. Plaintiff asserts that he paid the filing fee in one case that has counted as a strike, and
partially paid the filing fee in another. Id. Consequently, plaintiff asserts, the court should grant
him leave to appeal in forma pauperis. Id.

The court is unpersuaded. “Section 1915(g) precludes in forma pauperis status for
indigent inmates seeking to proceed in a civil action if, on three prior occasions, the litigant has
had a case dismissed as frivolous, malicious, or for failure to state a claim on which relief may be
granted.” White v. Colorado, 157 F.3d 1226, 1231 (10th Cir. 1998) (citing 28 U.S.C. § 1915(g)).
Section 1915(g) doesn’t distinguish between litigants who have filed their earlier cases in forma
pauperis and those who haven’t. Burghart v. Corr. Corp. of Am., 350 F. App’x 278, 279 (10th
Cir. 2009) (rejecting the same argument plaintiff makes here, because Congress enacted Section
1915(g) to curtail abusive prisoner litigation, and preventing a prisoner who has paid filing fees
in past frivolous lawsuits from proceeding in forma pauperis will serve this interest). And, to the
extent plaintiff challenges the constitutionality of § 1915(g), his argument fails because the Tenth
Circuit already has upheld its constitutionality. Id. (holding that “[t]his circuit has already
upheld the constitutionality of § 1915(g) against due process, equal protection, and access to the
courts challenges”).
Also, plaintiff seeks 30 days to brief the issue, asserting that the court never considered a
response from plaintiff when it granted defendants’ Motion for Reconsideration (Doc. 70). Doc.
74 at 1–2. D. Kan. Rule 6.1(d)(1) provides that, unless otherwise ordered by the court, responses
to non-dispositive motions are due within 14 days. The court may rule before the expiration of
the 14-day deadline. See Schell v. OXY USA, Inc., No. 07-1258-JTM, 2013 WL 2897042, at *1
(D. Kan. June 13, 2013) (holding that court did not err in granting motion before litigant could
respond, because “Rule 6.1 prefaces the time allowance with the phrase “‘[u]nless the court
orders otherwise . . . .’ In this case, the court clearly ordered otherwise.”) (quoting D. Kan. Rule
6.1(d)).

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The court thus denies plaintiff’s Motion for Reconsideration (Doc. 74). And, consistent
with the court’s March 12, 2020 Order, plaintiff is directed to pay the remainder of his $505
appellate filing fee if he wishes to proceed with his appeal (Doc. 73).
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff’s Motion for
Reconsideration (Doc. 74) is denied.
IT IS FURTHER ORDERED THAT plaintiff must pay the remainder of his $505
appellate filing fee to the Clerk of U.S. District Court if he wishes to proceed with his appeal,
consistent with the court’s March 12, 2020 Order.
IT IS SO ORDERED.
Dated this 30th day of March, 2020, at Kansas City, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge

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