United States District Court, D. Colorado
ORDER TO SHOW CAUSE
P. Gallagher United States Magistrate Judge.
Michael Allen Eshbach, is an inmate at the Jefferson County
Detention Facility in Golden, Colorado. Mr. Eshbach has filed
pro se a Prisoner Complaint (ECF No.
pursuant to 42 U.S.C. § 1983 claiming his rights under
the United States Constitution and Colorado state law were
violated by the state court judge who presided over his
criminal case. As relief he seeks damages for illegal
incarceration and being required to register as a sex
offender and he asks that his conviction be overturned and
that he be allowed to deregister as a sex offender. Mr.
Eshbach's request for an order to overturn his conviction
is not an appropriate request for relief in this § 1983
action and will not be considered. See Preiser v.
Rodriguez, 411 U.S. 475, 504 (1973) (holding that
“when a state prisoner is challenging the very fact or
duration of his physical imprisonment, and the relief he
seeks is a determination that he is entitled to immediate
release or a speedier release from that imprisonment, his
sole federal remedy is a writ of habeas corpus”).
Eshbach also has filed a Prisoner's Motion and Affidavit
for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF
No. 7) seeking leave to proceed in forma pauperis in
this action. However, his filing history implicates §
1915(g), which 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). For the reasons discussed below,
Mr. Eshbach will be ordered to show cause why leave to
proceed in forma pauperis should not be denied in
accordance with § 1915(g).
court may take judicial notice of its own records in
determining whether Mr. Eshbach has three or more prior
dismissals that count as strikes for the purposes of §
1915(g). See Green v. Nottingham, 90 F.3d 415, 418
(10th Cir. 1996). The court's records indicate
that Mr. Eshbach has initiated two actions in the District of
Colorado while incarcerated or detained that were dismissed
as legally frivolous. See Eshbach v.
Kimmons, No. 18-cv-01780-LTB (D. Colo. July 18, 2018)
(dismissed as legally frivolous); Eshbach v.
Gonsalves, No. 18-cv-02655-LTB (D. Colo. Oct. 22, 2018)
(dismissed as legally frivolous). Mr. Eshbach initiated a
third action in the District of Colorado while incarcerated
or detained that was dismissed pursuant to the rule in
Heck v. Humphrey, 512 U.S. 477 (1994).
See Eshbach v. Jefferson Cty. Sheriff's
Dep't, No. 18-cv-01747-LTB (D. Colo. July 12, 2018).
A dismissal under Heck counts as a strike for the
purposes of § 1915(g). See Hafed v. Fed. Bureau of
Prisons, 635 F.3d 1172, 1177-78 (10th Cir.
2011). As a result, the Court finds that Mr. Eshbach is
subject to the filing restriction in § 1915(g).
is only one exception to the prepayment requirement in §
1915(g)” and a prisoner with three or more strikes who
seeks to fall within that exception must “make
specific, credible allegations of imminent danger of serious
physical harm.” Hafed, 635 F.3d at 1179
(internal quotation marks omitted). The prisoner also must
demonstrate a nexus between the imminent danger alleged and
the legal claims asserted in the complaint. See Lomax v.
Ortiz-Marquez, No. 18-1250, 2018 WL 5870555 at *3
(10thCir. Nov. 8, 2018). Vague and conclusory
assertions of harm will not satisfy the imminent danger
requirement of § 1915(g). See White v.
Colorado, 157 F.3d 1226, 1231 -32 (10th Cir.
1998). Furthermore, allegations of past injury or harm are
not sufficient. See Fuller v. Wilcox, 288 Fed.Appx.
509, 511 (10th Cir. 2008). “Every circuit to
have decided the issue so far has concluded that the
statute's use of the present tense shows that a prisoner
must have alleged an imminent danger at the time he filed his
complaint.” Hafed, 635 F.3d at 1179
Eshbach concedes in his motion seeking leave to proceed
in forma pauperis that he is not in imminent danger
of serious physical injury. Therefore, he will be ordered to
show cause why the motion seeking leave to proceed in
forma pauperis should not be denied. Accordingly, it is
that Mr. Eshbach show cause in writing within thirty
(30) days from the date of this
order why leave to proceed in forma
pauperis should not be denied because he is subject to
the filing restriction in 28 U.S.C. § 1915(g). It is
ORDERED that if Mr. Eshbach fails to show good cause within
the time allowed, he will be denied leave to proceed in
forma pauperis in this action.
 “(ECF No. 1)” is an
example of the convention the court uses to identify the
docket number assigned to a specific paper by the court's
case management and electronic filing system (CM/ECF). The