Brinkman (ID 65738) v. Norwood et al

Filing 11

ORDER ENTERED: This action is dismissed without prejudice pursuant to Fed. R. Civ. P. 41(b). Plaintiff's pending motions 4 , 6 , 7 , 9 and 10 are denied. Signed by U.S. Senior District Judge Sam A. Crow on 09/19/18. Mailed to pro se party Albert L. Brinkman by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ALBERT L. BRINKMAN,
Plaintiff,
v.

CASE NO. 18-3136-SAC

JOE NORWOOD, et al.,
Defendants.

ORDER
Plaintiff, Albert L. Brinkman, is a state prisoner housed at El Dorado Correctional
Facility in El Dorado, Kansas. Plaintiff filed this pro se civil rights Complaint under 42 U.S.C.
§ 1983.
The Court entered an Order (Doc. 8) denying Plaintiff’s motion to proceed in forma
pauperis, finding Plaintiff is subject to the “three-strikes” provision under 28 U.S.C. § 1915(g).
The Court examined the Complaint and attachments and found no showing of imminent danger
of serious physical injury. The Court also granted Plaintiff until September 14, 2018, to submit
the $400.00 filing fee. The Court’s order provided that “[t]he failure to submit the fee by that
date will result in the dismissal of this matter without prejudice and without additional prior
notice.” (Doc. 8, at 4.) Plaintiff has failed to pay the filing fee by the deadline set forth in the
Order.
Rule 41(b) of the Federal Rules of Civil Procedure “authorizes a district court, upon a
defendant’s motion, to order the dismissal of an action for failure to prosecute or for failure to
comply with the Federal Rules of Civil Procedure or ‘a court order.’” Young v. U.S., 316 F.
App’x 764, 771 (10th Cir. 2009) (citing Fed. R. Civ. P. 41(b)). “This rule has been interpreted as
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permitting district courts to dismiss actions sua sponte when one of these conditions is met.” Id.
(citing Link v. Wabash R.R. Co., 370 U.S. 626, 630–31 (1962); Olsen v. Mapes, 333 F.3d 1199,
1204 n.3 (10th Cir. 2003)). “In addition, it is well established in this circuit that a district court is
not obligated to follow any particular procedures when dismissing an action without prejudice
under Rule 41(b).” Young, 316 F. App’x at 771–72 (citations omitted).
Plaintiff has failed to submit the required filing fee by the Court’s deadline. Instead,
Plaintiff has filed a motion for reconsideration and a motion to amend his complaint (Doc. 9),
and an emergency motion for preliminary injunction/temporary restraining order (Doc. 10). The
motion for preliminary injunction/tro seeks the same relief as the motion Plaintiff filed in Case
No. 18-3202. Plaintiff seeks preservation of his religious items that are the subject of claims in
cases before this Court as well as other cases. The Court granted Plaintiff’s motion in Case
No. 18-3202 to the extent that Defendants were ordered to refrain from destroying Plaintiff’s
religious items pending further order of the Court. See Brinkman v. Zimmerman, Case No. 183202-SAC, Doc. 5, at 2 (D. Kan.). The Court also cautioned Plaintiff that “[i]n the event his
cases before this Court are dismissed, the Court will no longer enjoin Defendants regarding the
religious items and Plaintiff would need to seek such relief in his other pending cases.” Id.
In his motion to amend his Complaint, Plaintiff alleges that his proposed counts four
through seven, and especially count four, will show that Plaintiff has been in danger every day
since September 8, 2016. Plaintiff’s complaints regarding the alleged failure to follow medical
orders beginning in September of 2016,1 have already been deemed deficient when evaluating

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Although Plaintiff apparently acknowledges that Dr. Sayeed cancelled Plaintiff’s medical orders in November of
2016, he disagrees with the doctor’s decision. See Doc. 9–2, at 9, 32, 34. Plaintiff alleges that “[t]he ignoring of
medical orders, and or, A.D.A./R.A. accommodations for Plaintiff’s physical, mental, and or, emotional disabilities
began as a daily, ongoing, continuing, matter in KS, KDOC, the first week of Sept. 2016 and Plaintiff suffers injury
daily through this filing, as he is punished for his disabilities, and suffers loss of const. rights in what he is being
denied.” Doc. 9-2, at 11.
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whether he can escape the three-strikes provision. The Court finds that Plaintiff’s proposed
amended complaint fails to allege a sufficient showing of imminent danger of serious physical
injury, for the same reasons set forth in the Court’s Order at Doc. 8, and in the Court’s orders in
Case Nos. 18-3009 and 18-3202. See Doc. 8, at 3–4 (finding that past incidents are insufficient
where the imminent danger exception has a temporal limitation and is construed narrowly and
available only for genuine emergencies, where time is pressing and a threat is real and
proximate).
The Court dismisses this action without prejudice pursuant to Rule 41(b) for failure to
comply with court orders.
IT IS THEREFORE BY THE COURT ORDERED that this action is dismissed
without prejudice pursuant to Fed. R. Civ. P. 41(b).
IT IS FURTHER ORDERED THAT Plaintiff’s pending motions (Docs. 4, 6, 7, 9 and
10) are denied.
IT IS SO ORDERED.
Dated on this 19th day of September, 2018, in Topeka, Kansas.

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

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