United States District Court, E.D. Missouri, Northern Division
MEMORANDUM AND ORDER
W. SIPPEL UNITED STATES DISTRICT JUDGE.
closed case is before the Court on plaintiff Joshua
Hackman's motion to reconsider the memorandum and order
dated February 19, 2019, which denied without prejudice
plaintiff's motion to proceed in forma pauperis under the
“three strike rule, ” 28 U.S.C. § 1915(g).
For the following reasons, plaintiff's motion will be
January 30, 2019, plaintiff Joshua Hackman, a prisoner at the
Northeast Correctional Center (“NECC”), filed his
complaint in the United States District Court for the Western
District of Missouri. Because the allegations in the
complaint involved conduct that occurred at NECC, which is
located in this judicial district, the case was transferred
to this Court on February 13, 2019.
February 19, 2019, this Court determined that plaintiff had
three “strikes” under 28 U.S.C. § 1915(g).
See ECF No. 6. He could only proceed in forma
pauperis, therefore, if his allegations demonstrated that he
was under imminent danger of serious physical injury. After
careful review, the Court found no allegation in
plaintiff's complaint showing plaintiff was in imminent
danger of serious physical injury. Id. As a result,
the Court denied plaintiff's motion to proceed in forma
pauperis, without prejudice to refiling as a fully-paid
complaint, and closed the case. Id.
that time, plaintiff has filed a supplement to his petition
(ECF No. 8), a motion to appoint counsel and transfer the
case back to the District Court for the Western District of
Missouri (ECF No. 9), a letter to the Court (ECF No. 11), and
a motion to reconsider the memorandum and order dated
February 19, 2019 (ECF No. 10). In his motion to reconsider,
plaintiff alleges he is in imminent danger of serious
physical injury, and asks the Court to reconsider its denial
of his motion to proceed in forma pauperis, which would
reopen his case. Because the Court finds plaintiff has not
made a showing of imminent danger, it will deny
brought this action under 42 U.S.C. § 1983 against
several correctional officers and a case manager at NECC.
Plaintiff alleges that these defendants conspired to deny him
access to the courts and disciplined him by filing
“frivolous, malicious, and often retaliatory conduct
violations.” As discipline for these conduct
violations, plaintiff states the defendant correctional
officers transferred him to administrative segregation, kept
him confined in segregation longer than authorized, falsified
a conduct violation for “escape on known felony,
” and denied him medical assistive devices and lay-ins
while in segregation.
also complained of the conditions in segregation, namely that
he was given a shower only once every three days, therapy was
reduced to one hour a day and often denied, his cell did not
have air conditioning, he was refused medical devices such as
“shoes, insoles, feet lift, ” he was placed in
cuffs and “forced to walk in pain in segregation,
” he was denied use of a handicap accessible shower, he
was given a “thinner mat and forced to sleep on [the]
floor due to cellmates size, ” and that these
conditions continued for [illegible, either 20 or 90] days.
Finally, he complained that he was being kept at a medium
security facility, but should be transferred to a low
security facility. Plaintiff sought $10, 000 in compensatory
damages, and $100, 000 in punitive damages.
attached to his complaint three conduct violation reports
dated July 31, 2018, September 3, 2018, and January 18, 2019.
He also attached four separate carbon copies of disciplinary
action reports (which are largely illegible), and an activity
restriction rules sheet, which restricted plaintiff's
activities from January 25, 2019 to February 4, 2019.
plaintiff has three strikes under § 1915(g), he may only
proceed in forma pauperis if he “is under imminent
danger of serious physical injury.” 28 U.S.C. §
1915(g). “[A]n otherwise ineligible prisoner is only
eligible to proceed IFP if he is in imminent danger at
the time of filing. Allegations that the prisoner has
faced imminent danger in the past are insufficient to trigger
this exception to § 1915(g) and authorize the prisoner
to pay the filing fee on the installment plan.”
Ashley v Dilworth, 147 F.3d 715, 717 (8th Cir. 1998)
(emphasis in original). To show imminent danger, a complaint
must contain “specific fact allegations of ongoing
serious physical injury, or of a pattern of misconduct
evidencing the likelihood of imminent serious physical
injury.” Martin v. Shelton, 319 F.3d 1048,
1050 (8th Cir. 2003).
plaintiff's motion to reconsider, he states as follows:
lost 20 pounds in a matter of 4 days. I have a medical
history that will be submitted by my mother soon . . . I have
been shot numerous times in leg and stomach. I am being
maliciously housed on a top bunk (which causes me to sleep on
floor) and top second level cell. I suffer from nerve damage
and hip problems and have also fell down stair previously. I
have had stomach surgeries for my colostomy and I am
suffering blood in my bowel movements. I ask that you please
reconsider your decision to transfer my case back to Western
District where problems started at Algoa Correctional Center.
I did not have all ...