Batista (ID 46123) v. Zmuda 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 December 26, 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 11/26/2024. Mailed to pro se party Raul Batista by regular mail. (jal)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
RAUL BATISTA,
Plaintiff,
v.

CASE NO. 24-3211-JWL

JEFF ZMUDA, et al.,
Defendants.
MEMORANDUM AND ORDER
Plaintiff, Raul Batista, who is currently incarcerated at the Larned State Correctional
Facility in Larned, Kansas, brings this pro se civil rights case. Plaintiff alleges that the defendants
did not take appropriate measures to protect him from an attack by another inmate in March of
2021 at the Lansing Correctional Facility. (Doc. 1, at 4–5.) Plaintiff states that he received wounds
to his head and remained in the clinic for ten days. Id. at 5.
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 that qualify as
“strikes” under § 1915(g). See Batista v. Sapien, No. 15-3039-SAC-DJW (Doc. 3) (dismissing for failure to state a
claim) (D. Kan. Dec. 29, 2015); Batista v. Watson, No. 13-3152-SAC (Doc. 5) (dismissed for failure to state a claim)
(D. Kan. Dec. 11, 2013); Batista v. Kansas Dep’t of Corrections, No. 13-3063-SAC (Doc. 7) (dismissed for failure to
state a claim) (D. Kan. Dec. 11, 2013).

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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). Allegations of past
injury or harm are not sufficient to satisfy the imminent danger requirement. Barrett v. Workman,
486 F. App’x 706, 708 (10th Cir. 2012); Fuller v. Wilcox, 288 F. App’x 509, 511 (10th Cir. 2008).
The Court has examined the Complaint and finds no showing of imminent danger of
serious physical injury. 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.

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.

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IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s motion for leave to
proceed in forma pauperis (Doc. 2) is denied.
IT IS FURTHER ORDERED that Plaintiff is granted until December 26, 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 November 26, 2024, in Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE

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