Chapman v. Retelsdorf et al

Filing 13

MEMORANDUM AND ORDER - Chapman's Motion for Leave to Proceed in Forma Pauperis (Filing No. 2 ) is denied. Chapman's Motion for Order (Filing No. 9 ) and Motion to Appoint Counsel (Filing No. 10 ) are denied as moot. This case is dismisse d without prejudice and a separate judgment will be entered in accordance with this Memorandum and Order. Any notice of appeal filed by Chapman must be accompanied by the $505.00 appellate filing fee because Chapman will not be allowed to proceed in forma pauperis on appeal. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BILLIE JOE CHAPMAN,
Plaintiff,

8:17CV425

vs.
JUDGE LEIGH ANN RETELSDORF,
of Douglas County District Court and
other state/city employees of Nebraska;
BRENDA LEUCK, Atty.; SEAN
LYNCH, Atty.; and RYAN
TEMPLETON, Omaha Police Ofc.;

MEMORANDUM
AND ORDER

Defendants.
This matter is before the court on its own motion. On November 16, 2017,
the court required Plaintiff Billie Joe Chapman to show cause why he is entitled to
proceed in forma pauperis in this action. (See Filing No. 8.) The court has
previously determined that three or more federal court cases brought by Plaintiff,
while a prisoner, were dismissed as frivolous or for failure to state a claim. See
Chapman v. Chief Executive Officer, Case No. 8:15CV259 (D.Neb.) (Filing No. 9,
August 19, 2015 Memorandum and Order dismissing action pursuant to PLRA’s
“three strikes” provision). The Prison Litigation Reform Act (“PLRA”) prevents a
prisoner with “three strikes” from proceeding IFP unless the prisoner is under
imminent danger of serious physical injury. 28 U.S.C. § 1915(g).
Chapman responded to the court’s order on November 30, 2017. (See Filing
No. 11; Filing No. 12.) Chapman argues he should be allowed to proceed in forma
pauperis in this action because his constitutional rights were violated when the
Douglas County District Court (“state district court”) entered an order finding him
incompetent to stand trial in violation of Neb. Rev. Stat. § 29-1823 and committed
him to the Lincoln Regional Center (“LRC”) until his competency is restored.

Though not explicitly stated, the court could infer Chapman is alleging he is under
imminent danger of serious physical injury based on his claims that Defendant
Judge Leigh Ann Retelsdorf entered a verbal order on August 21, 2017, that the
LRC can “force drugs against Plaintiff’s will.” (Filing No. 11 at CM/ECF p.2; see
also Filing No. 1 at CM/ECF p.5.)
“[T]he requisite imminent danger of serious physical injury must exist at the
time the complaint or the appeal is filed . . . . [and] the exception focuses on the
risk that the conduct complained of threatens continuing or future injury, not on
whether the inmate deserves a remedy for past misconduct.” Martin v. Shelton,
319 F.3d 1048, 1050 (8th Cir. 2003). Moreover, forced administration of
medication does not necessarily create an imminent danger of serious physical
injury. See Holbach v. North Dakota, No. 3:13-CV-38, 2014 WL 295153, *2
(D.N.D. Jan. 24, 2014) (finding plaintiff’s conclusory statement that he was being
drugged “to kill [him] . . . and silence [him]” by state hospital after being found
incompetent to stand trial was insufficient to implicate the imminent danger
exception); Robinson v. Stoddard, No. 1:13–cv–754, 2013 WL 3974715, *2
(W.D.Mich. Aug. 2, 2013) (finding plaintiff’s claim that being subjected to forced
unidentified medication is life-threatening is “wholly irrational” and does not
implicate the imminent danger exception); Smith v. Rohling, Civ. No. 0–3184–
SAC, 2011 WL 1326038, *2 (D.Kan. Apr. 6, 2011) (holding the involuntary
administration of psychotropic medication following a hearing and physician
review did not put inmate in imminent danger of serious physical harm); Staley v.
Yu, No. 9:07–159–PMD–GCK, 2007 WL 1149874, *1 (D.S.C. Apr. 11, 2001)
(Failure to demonstrate that forced psychotropic medication was necessarily
dangerous or that it caused the plaintiff to suffer any specific injury did not meet
the showing of imminent physical harm required under § 1915(g).).
The alleged harm Chapman complains about is speculative at best and his
allegations do not support a finding that Chapman is “under imminent danger of
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serious physical injury.” 28 U.S.C. § 1915(g). By his own admission, Plaintiff is
still housed at the Douglas County Department of Corrections and has not been
moved to the LRC due to space being unavailable. (Filing No. 12 at CM/ECF p.3.)
Plaintiff has not alleged that he was being forcibly medicated at the time his
Complaint was filed or that he is currently. The competency evaluation attached to
Plaintiff’s Complaint only suggests that “[i]t is considered desirable that [LRC] be
allowed to treat him with medicine involuntarily” should Plaintiff “refuse to take
it.” (Filing No. 1 at CM/ECF p.17.) Plaintiff does not allege what type of
medication would be forced on him or whether such medication would cause
Plaintiff to suffer any specific injury. Moreover, as Plaintiff alleges, any plans to
forcibly medicate Plaintiff would be with the state district court’s authorization and
subject to review in that court or the Nebraska appellate courts.1
For the foregoing reasons, the court finds that Chapman has failed to
demonstrate that he is under imminent danger of serious harm. Accordingly, he is
prohibited from proceeding IFP pursuant to 28 U.S.C. § 1915(g). Because
Chapman has not paid the $400.00 filing and administrative fees and for lack of
good cause shown, this matter is dismissed without prejudice.

1

Plaintiff attempted to review the state district court’s order committing him to the LRC
for restoration of competency, but his appeal was dismissed on November 13, 2017, as untimely.
(See Filing No. 12 at CM/ECF pp.8, 11.). The attachments to Plaintiff’s pleadings and his state
case records, available to this court on-line, show that Plaintiff’s case, State v. Chapman, Case
No. CR17-729, District Court of Douglas County, Nebraska, is still pending. See Stutzka v.
McCarville, 420 F.3d 757, 760 n.2 (8th Cir. 2005) (court may take judicial notice of judicial
opinions and public records). The state district court is required to hold a hearing in Plaintiff’s
criminal case “[w]ithin six months after the commencement of the treatment ordered . . . , and
every six months thereafter . . . to determine . . . whether the accused is competent to stand trial.”
Neb. Rev. Stat. § 29-1823. Thus, Plaintiff will have opportunities to challenge any future
competency and treatment determinations in state court. See State v. Guatney, 299 N.W.2d 538,
543 (Neb. 1980) (holding that “an order finding [an accused] incompetent to stand trial and
ordering him confined until such time as he is competent is a final order from which an appeal
may be taken.”).

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IT IS THEREFORE ORDERED that:
1.
Chapman’s Motion for Leave to Proceed in Forma Pauperis (Filing
No. 2) is denied.
2.
Chapman’s Motion for Order (Filing No. 9) and Motion to Appoint
Counsel (Filing No. 10) are denied as moot.
3.
This case is dismissed without prejudice and a separate judgment will
be entered in accordance with this Memorandum and Order.
4.
Any notice of appeal filed by Chapman must be accompanied by the
$505.00 appellate filing fee because Chapman will not be allowed to proceed in
forma pauperis on appeal.
Dated this 15th day of December, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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