Brinkman (ID 65738) v. Norwood et al

Filing 8

ORDER ENTERED: Plaintiff's motion to proceed in forma pauperis 2 is denied. Plaintiff is granted until September 14, 2018, 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 U.S. Senior District Judge Sam A. Crow on 08/17/18. 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 FacilityCentral in El Dorado, Kansas. Plaintiff brings this pro se civil rights Complaint pursuant to 42
U.S.C. § 1983.
Plaintiff has filed a motion to proceed in forma pauperis (Doc. 2). 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
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. The
Court has examined the Complaint and finds no showing of imminent danger of serious physical
injury.
“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
1

See Brinkman v. Norwood, Case No. 18-3009-SAC; Brinkman v. Ryan, Case No. 4:17-cv-00359-FRZ-PSOT, Doc.
6 (D. Ariz. Sept. 29, 2017).
1

harm.’”

Davis v. GEO Group Corr., 696 F. App’x 851, 854 (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(unpublished) (quoting Hafed v. Fed.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’s Complaint alleges that while he was an inmate at the Hutchinson Correctional
Facility in Hutchinson, Kansas (“HFC”) and the El Dorado Correctional Facility in El Dorado,
Kansas (“EDCF”), defendants failed to accommodate his disabilities, failed to follow medical
orders, failed to provide a proper diet, and failed to allow him to practice his Wiccan religion.
Plaintiff’s claims in this case are substantially the same as those he asserted in Brinkman v.
Norwood, Case No. 18-3009. The Court dismissed that case for failure to pay the filing fee,
finding that Plaintiff was a three-strikes litigant and failed to show imminent danger of serious
physical injury.
Plaintiff reasserts his claims in the instant action, again arguing that he is in imminent
danger of serious physical injury. Plaintiff alleges that he has a medical order for “front cuff
only” due to abdominal aneurisms. Plaintiff alleges past incidents of excessive force, from
November 9, 2016 to March 15, 2017, as a result of staff enforcing EDCF and HCF rules which
do not allow for front-cuffing and instead require belly chains. (Doc. 1, at 9–17.) Plaintiff also
alleges that because medical staff would not come to his cell, and security would not transport
Plaintiff with “front cuff only,” Plaintiff had no medical care or exams beyond receiving his

2

medication.

Id. at 12.

Plaintiff also attempts to show imminent danger by alleging that

Defendant Randolph’s statement to Plaintiff that the SST Team was approved for “use of force”
“was the same as a physical beating to gain surrender, and submission, no different than holding
a knife to the throat, so that Plaintiff, faced with pretty much assured death, or great bodily harm,
is left with choosing ‘best odds of survival’ (advise given to any victim of any kind of assault).”
Id. at 13.

Plaintiff also alleges that his crutch was taken, he was “put in a broken wheelchair

where he had to hold up his legs,” and he received bruises from the straps of the “restraint chair”
that was used to transport him for a “medical shower.” Id. at 12, 17.
Plaintiff also alleges that on August 29, 2017, he received his food tray through the trap
door of his cell and when he paused to inspect the tray to see if it was in compliance with his
medical diet, Defendant Peterson slammed the trap door shut, pinching Plaintiff’s fingers, and
“endangering the stability of his 3 abdominal aortic aneurisms” and causing “serious
psychological trauma, (mental & emotions anguish), all done without provocation, that
exacerbated Plaintiff’s PTSD, and dizziness, headache, nausea.” Id. at 23.
The Court has examined the Complaint2 and finds that Plaintiff has failed to establish a
threat of imminent danger of serious physical injury. The “imminent danger” exception has a
temporal limitation—[t]he exception is construed narrowly and available only ‘for genuine
emergencies,’ where ‘time is pressing’ and ‘a threat . . . is real and proximate.’” Lynn v. Roberts,
No. 11-3073-JAR, 2011 WL 3667171, at *2 (D. Kan. Aug. 22, 2011) (citation omitted).
“Congress included an exception to the ‘three strikes’ rule for those cases in which it appears that

2

The Court was forced to search Plaintiff’s 35-page Complaint for allegations of imminent danger of serious
physical injury. The Court notes that Plaintiff should have attached an affidavit to his motion to proceed in forma
pauperis, containing only those facts relevant to make the showing of imminent danger of serious physical injury.
See Lynn v. Roberts, No. 11-3073-JAR, 2011 WL 3667171, at *1–2 (D. Kan. Aug. 22, 2011).
3

judicial action is needed as soon as possible to prevent serious physical injuries from occurring
in the meantime.’” Id. (citation omitted).
Although Plaintiff sets forth past incidents allegedly involving excessive force,
allegations of past harm are insufficient. “[A]llegations of past misconduct of defendants and
even of past injury to plaintiff are insufficient to allow a three-striker to proceed IFP.” Id.
(citation omitted). “When the reason that the plaintiff speculates he is in danger of future harm is
a pattern of past harassment, he still must show that danger was imminent at the time he filed his
complaint.” Id. (citation omitted). “[E]ven specific examples of being denied health care in the
past are not sufficient to satisfy the imminent danger exception under § 1915(g).” Id. at *3.
(citation omitted). The allegations of imminent physical danger must be plausible and credible.
Id.
Plaintiff’s allegations do not meet the imminent danger exception. Accordingly, pursuant
to § 1915(g) Plaintiff may not proceed in forma pauperis in this civil action. Plaintiff is given
time to pay the full $400.00 district court filing fee3 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. 2) is denied.
IT IS FURTHER ORDERED that Plaintiff is granted until September 14, 2018, 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.

3

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.
4

IT IS SO ORDERED.
Dated on this 17th day of August, 2018, in Topeka, Kansas.
s/ Sam A. Crow
SAM A. CROW
U. S. Senior District Judge

5