Roberts v. Moon et al

Filing 3

MEMORANDUM AND ORDER ENTERED: Plaintiff's motion for leave to proceed in forma pauperis (Doc. 2 ) is denied. Plaintiff is granted until October 18, 2024, to submit the $405.00 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 John W. Lungstrum on 09/26/24. Mailed to pro se party Robert F. Roberts by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ROBERT F. ROBERTS,
Plaintiff,
v.

CASE NO. 24-3165-JWL

K. MOON, et al.,
Defendants.
MEMORANDUM AND ORDER
Plaintiff, Robert F. Roberts, who is currently detained at the Chase County Jail in
Cottonwood Falls, Kansas, brings this pro se civil rights case under 42 U.S.C. § 1983. Although
Plaintiff is currently confined at the Chase County Jail, his claims are based on incidents
occurring around September 3, 2024, during his detention at the Harvey County Jail in Newton,
Kansas. Plaintiff also alleges that he was subjected to excessive force, and that the conditions at
the Harvey County Jail were unsanitary.
Plaintiff has filed a motion for leave 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

1

Prior to filing the instant complaint, the Court finds at least three prior civil actions filed by Plaintiff which qualify
as “strikes” under § 1915(g). See Roberts v. Long, Case No. 18-3286 (D. Kan.) (dismissed as barred by Heck);
Roberts v. Wichita Police Dep’t, Case No. 19-3044 (D. Kan.) (dismissed for failure to state a claim); Roberts v.
Thompson, Case No. 19-3045 (D. Kan.) (dismissed for failure to state a claim). A dismissal based on Heck is for
failure to state a claim. See Smith v. Veterans Admin., 636 F.3d 1306, 1312 (10th Cir. 2011); see also Miles v.
Kansas, 770 F. App’x 432, 433 (10th Cir. 2019) (unpublished) (where dismissal was based on Heck, Tenth Circuit
assessed two strikes—“one for the district court’s dismissal and one for our dismissal”) (citation omitted).
1

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., 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 “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 judicial action is needed as soon as possible to prevent
serious physical injuries from occurring in the meantime.’” Id. (citation omitted).
The Court has examined the Complaint and finds no showing of imminent danger of
serious physical injury. Plaintiff is no longer housed at the Harvey County Jail. Accordingly,
pursuant to § 1915(g) Plaintiff may not proceed in forma pauperis in this civil action. Plaintiff is
given time to pay the full $405.00 district court filing fee2 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 for leave
to proceed in forma pauperis (Doc. 2) is denied.

2

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 $55.00 general administrative fee pursuant to § 1914(b) and
the District Court Miscellaneous Fee Schedule prescribed by the Judicial Conference of the United States.
2

IT IS FURTHER ORDERED that Plaintiff is granted until October 18, 2024, to submit
the $405.00 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.
Dated September 26, 2024, in Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE

3