Chapman v. Douglas County Department of Corrections et al

Filing 15

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. 13 ) and Motion for Leave to Add Defendant (Filing No. 14 ) are denied as moot. This case is dismissed 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,

8:17CV465

vs.
DOUGLAS COUNTY DEPARTMENT
OF CORRECTIONS, and MARK
FOXHALL, C.E.O.;

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. 7.) 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 January 25, 2018. (See Filing
No. 12.) Chapman argues he should be allowed to proceed in forma pauperis in
this proceeding because this action, like all other actions he has filed, is not
frivolous, malicious, and states a claim, “and Plaintiff would not waste his time if
[there was no] danger or serious physical injury or harm, and or emotion [sic] harm
that could cause physical or long lasting harm by illegal restraint of liberty rights.”
(Id. at CM/ECF p.1.) Chapman also objects to the court’s use of Chapman v. Chief
Executive Officer, Case No. 8:15CV259, as a strike because he was not able to

respond in that case because he was being beaten, injured, drugged, and he was
restricted from pen and paper and did not receive any mail.
Chapman misconstrues the court’s reliance on Chapman v. Chief Executive
Officer, Case No. 8:15CV259. In that case, the court determined Chapman had
brought at least three cases in federal court that had been 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)
(citing Chapman v. Baldwin, No. 4:14-cv-00065-REL (S.D.Iowa July 3, 2014)
(dismissed as frivolous); Chapman v. McKinney, et al., No. 1:14-cv-00028-EJM
(N.D. Iowa Aug. 25, 2014) (dismissed on statute of limitations grounds); and
Chapman v. Parry-Jones, et al., No. 1:14-cv-00109-EJM (N.D. Iowa Nov. 4,
2014) (dismissed on statute of limitations grounds)). Thus, the court in Chapman v.
Chief Executive Officer, Case No. 8:15CV259, denied Chapman’s request to
proceed in forma pauperis and dismissed the case for failure to pay the filing fee.
This court does not count Chapman v. Chief Executive Officer, Case No.
8:15CV259, as a “strike” under 28 U.S.C. § 1915(g), but rather relies on its
identification of Chapman as being subject to the three strikes rule.
The court has considered Chapman’s response to the court’s show cause
order, the Complaint, and his other filings and finds his allegations do not support
a finding that Chapman is “under imminent danger of serious physical injury.” 28
U.S.C. § 1915(g). Chapman generally alleges that he suffered abuse and injuries
while held at Douglas County Department of Corrections, but complaints solely
about past alleged harms are insufficient to show the imminent physical harm
required under § 1915(g). See Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir.
2003) (“[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.”). Accordingly,

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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. 13) and Motion for Leave to
Add Defendant (Filing No. 14) 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 6th day of February, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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