United States District Court, D. Colorado
ORDER DENYING LEAVE TO PROCEED PURSUANT TO 28 U.S.C. § 1915
LEWIS T. BABCOCK, Senior District Judge.
Plaintiff Antoine Bruce is in the custody of the Federal Bureau of Prisons and currently is incarcerated at the United States Penitentiary-ADX in Florence, Colorado. On July 24, 2014, Plaintiff initiated this action by filing pro se a Prisoner Complaint. The Court granted Plaintiff leave to proceed pursuant to 28 U.S.C. § 1915 on September 8, 2014. The Court then directed Plaintiff to file an Amended Complaint; but after being granted several extensions of time Plaintiff failed to comply and the action was dismissed without prejudice. On December 31, 2014, Plaintiff filed a Motion for Reconsideration of the dismissal, which the Court granted on January 28, 2015. Plaintiff was allowed thirty days to comply with the September 8, 2014 Order to Amend. Plaintiff filed an Amended Complaint on February 12, 2015, that is the operative pleading for this Order.
On March 9, 2015, Defendants in another of Plaintiff's pending cases notified the Court Plaintiff is subject to filing restrictions pursuant to 28 U.S.C. § 1915(g). See Bruce v. Alvarez, et al., No. 14-cv-03232-RM-NYW, ECF No. 27 (D. Colo. Filed Nov. 26, 2014). Magistrate Judge Gordon P. Gallagher then entered an Order to Show Cause in this case as follows.
Upon review of the Public Access to Court Electronic Records (PACER), the Court now has found that Plaintiff is subject to filing restrictions pursuant to 28 U.S.C.§ 1915(g). The Court, therefore, will vacate the September 8, 2014 Order granting Plaintiff leave to proceed pursuant to § 1915 and direct Plaintiff to show cause why he should not be denied leave to proceed pursuant to 28 U.S.C. § 1915 for the reasons stated below.
Plaintiff, on three or more occasions, has brought an action that was dismissed on the grounds that it failed to state a claim or was frivolous. See Bruce v. Coulter, et al., No. 14-cv-00210-LTB (D. Colo. Apr. 23, 2014) (dismissed as malicious under 28 U.S.C. § 1915(e)(2)(B)(i)) (unpublished); Bruce v. Denney, No. 14-cv-03026-SAC (D. Kan. Apr. 2, 2014) (dismissed for failure to state a claim and as legally frivolous) (unpublished); Bruce v. C. Wilson, et al., No. 13-cv-00491-WJM-CBS (D. Colo. Nov. 4, 2013) (a Fed.R.Civ.P. 12(b)(6) dismissal). In relevant part, § 1915 provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, 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, unless the prisoner is under imminent danger of serious physical injury.
28 U.S.C. § 1915(g).
Based on the following, Plaintiff does not assert that Defendants' actions are the cause of any imminent danger of serious physical injury. In the Complaint, Plaintiff states three claims. In the first claim, Plaintiff asserts he has a skin condition that is not being addressed. In the second and third claims, Plaintiff asserts he is being denied access to the courts. Plaintiff is required to provide "specific fact allegations of ongoing serious physical injury, or a pattern of misconduct evidencing the likelihood of imminent serious physical injury." Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003) (emphasis added). Vague or conclusory allegations of harm are insufficient. White v. Colorado, 157 F.3d 1226, 1231-32 (10th Cir. 1998). Because Plaintiff is subject to § 1915(g) filing restrictions, all of his claims must contain specific factual descriptions that would support a violation of his constitutional rights and state why he currently is in imminent danger of serious physical injury.
Therefore, the Court finds that Plaintiff has initiated three or more actions that count as strikes pursuant to § 1915(g) and that he is not under imminent danger of serious physical injury based on the alleged actions. Pursuant to § 1915(g) he is precluded from bringing the instant action in forma pauperis. Plaintiff will be ordered to show cause why he should not be denied leave to proceed pursuant to 28 U.S.C. § 1915(g).
ECF No. 33 at 1-3. This Court agrees with Magistrate Judge Gallagher's findings.
Rather than respond to the Order to Show Cause Plaintiff filed a second Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 and a Motion for a Temporary Restraining Order and for a Preliminary Injunction (Motion for TRO/PI). See ECF Nos. 34 and 35. In both the § 1915 Motion and the TRO/PI Motion, Plaintiff now claims that he is in imminent danger because Defendant Osagie refuses medical treatment for the extreme swelling in his legs from his feet to his knees. Plaintiff also asserts in the § 1915 Motion that he is having panic attacks, heart palpitations, chest pains with labored breathing, and he thinks he has diabetes, but Defendant Osagie will not order the needed tests. The Court construes both the § 1915 Motion and the TRO/PI Motion as a Response to the March 17, 2015 Order to Show Cause.
In the TRO/PI Motion, Plaintiff asserts in a conclusory manner that Defendant Osagie will not order the needed medical testing to determine if Plaintiff has diabetes. Plaintiff also asserts that he initiated a hunger strike on March 19, 2015, because of the ongoing deprivation of his medical treatment. He further asserts that he ended the strike when on March 27, 2015, he was placed on the "Tele-Psychiatrist" waiting list to address resuming his anti-depressant drug prescription. ECF No. 35 at 3.
Plaintiff's hunger strike claim no longer is at issue, because he has stopped the strike and has been placed on the Tele-Psychiatric list. Plaintiff also does not state in the TRO/PI Motion specific factual descriptions of how in each of the three claims raised in the February 12 Complaint Defendants placed him in imminent danger of serious physical injury. Plaintiff, however, does address a new issue of extreme swelling of his feet and legs and has attached to the TRO/PI Motion, requests that he allegedly submitted to "All Medical Staff/Officials/A. Osagie & PHS Thompson" for immediate care regarding a laundry list of medical issues, which include the swelling of his feet and legs. TRO/PI Mot., ECF No. 35-1 at 1-6.
In the April 9 § 1915 Motion, Plaintiff states that Defendant Osagie has refused him medical treatment and as a result he is in extreme pain due to swelling in his feet and ankles. ECf No. 34 at 2. Plaintiff also contends that he suffers from panic attacks, heart palpitations, chest pains, labored breathing, choking sensations, semi-paralysis in ...