Waterman (ID 126456) v. Tunnel et al

Filing 4

MEMORANDUM AND ORDER ENTERED: Plaintiff's motion for leave to proceed in forma pauperis (Doc. 2 ) is denied. Plaintiff's Motion to Object to any Martinez Report (Doc. 3 ) is denied. Plaintiff is granted until April 4, 2025, to submit t he $405.00 filing fee. The failure to respond by the deadline will result in the dismissal of this matter without prejudice and without additional prior notice. Signed by District Judge John W. Lungstrum on 03/06/25. Mailed to pro se party Brian Waterman by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BRIAN WATERMAN,
Plaintiff,
v.

CASE NO. 25-3038-JWL

MICHELLE TUNNEL, et al.,
Defendants.
MEMORANDUM AND ORDER
Plaintiff, Brian Michael Waterman, who is incarcerated at the Hutchinson Correctional
Facility in Hutchinson, Kansas, brings this pro se civil rights case. Plaintiff has filed a motion
for leave to proceed in forma pauperis (Doc. 2). Plaintiff alleges that he is allergic to peas, and
on February 27, 2025, he was served a food tray with a pea in it. (Doc. 1, at 4.) Plaintiff alleges
that he immediately spit the pea out and rinsed his mouth, and started “breaking out in a rash.”
Id. Plaintiff was taken to medical, where he alleges the nurse “overdosed him on steroids.” Id.
at 5. Plaintiff alleges that the nurse failed to counteract the medication for over 22 hours. Id.
Plaintiff alleges that his food trays are still being contaminated by Aramark. Id. at 6.1
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.”2
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Plaintiff filed an emergency grievance on March 3, 2025, that allowed staff 10 days to respond. (Doc. 1–1.)
Plaintiff filed his Complaint in this case on March 5, 2025, and the Complaint and his motion at Doc. 3 appear to be
signed by Plaintiff on March 3, 2025. Therefore, it appears that Plaintiff did not fully exhaust his administrative
remedies prior to filing this case.
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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 In re Brian Michael Waterman, Case No. 21-3049, Doc. 010110507615, at 2 (10th
Cir. April 14, 2021) (finding that Waterman failed to present even a colorable claim to mandamus relief and
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Accordingly, he may 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)).
“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). 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. 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
fee3 to the Court. Failure to respond within the prescribed time will result in the dismissal of this
matter without prejudice and without additional prior notice.

dismissal of his petition as frivolous counts as a strike for purposes of the three-strikes provision in 28 U.S.C.
§ 1915(g)); Waterman v. Crawford County Jail, Case No. 18-3035-SAC, Doc. 28 (D. Kan. June 4, 2018)
(dismissing for failure to state a claim); Waterman v. Tippie, Case No. 18-3295-JTM-GEB, Doc. 22 (D. Kan. July 8,
2019) (dismissing for failure to state a claim).
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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

Plaintiff has filed a Motion to Object to any Martinez Report (Doc. 3), asking the Court
not to order a Martinez Report. The Court determines whether or not a Martinez Report is
necessary during the screening stage. The motion is denied.
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’s Motion to Object to any Martinez Report
(Doc. 3) is denied.
IT IS FURTHER ORDERED that Plaintiff is granted until April 4, 2025, to submit the
$405.00 filing fee. The failure to respond by the deadline will result in the dismissal of this
matter without prejudice and without additional prior notice.
IT IS SO ORDERED.
Dated March 6, 2025, in Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE

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