Cooley v. City of Lawrence, Kansas

• Court: District Court, D. Kansas
• Decided: October 29, 2024
• Docket: 5:24-cv-03191
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

TONY ALLEN COOLEY,

Plaintiff,

v. CASE NO. 24-3191-JWL

CITY OF LAWRENCE, KANSAS, et al.,

Defendants.

MEMORANDUM AND ORDER Plaintiff, Tony Allen Cooley, who is currently in custody at the Douglas County Jail in Lawrence, Kansas (“DCJ”), brings this pro se civil rights case under 42 U.S.C. § 1983. Plaintiff claims that he was arrested on September 27, 2024, at Amtrak where homeless people live, and his property was destroyed instead of being moved to his cousin’s land pursuant to his verbal agreement with the Act Team of Bert Nash. (Doc. 1, at 2.) Plaintiff also claims that he was not provided with an adequate vegan diet at the DCJ and he was given “objects to cut with” on October 20, 2024. Id. at 6. Plaintiff alleges that he did not receive adequate medical care and he was tortured during booking the first week of October 2024. Id. Plaintiff has filed a motion for leave to proceed in forma pauperis (Doc. 2). Plaintiff is subject to the “three-strikes” provision under 28 U.S.C. § 1915(g). Court records fully establish that Plaintiff “has, on 3 or more prior occasions, while incarcerated . . . , 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.”1 Accordingly, he may

1 Prior to filing the instant complaint, the Court finds at least three prior civil actions filed by Plaintiff which qualify as “strikes” under § 1915(g). See Cooley v. McGovern, Case No. 08-cv-3004-SAC (D. Kan. March 25, 2008) proceed in forma pauperis only if he establishes a threat of imminent danger of serious physical injury. Id. “To meet the only exception to the prepayment requirement, a prisoner who has accrued three strikes must make ‘specific, credible allegations of imminent danger of serious physical harm.’” Davis v. GEO Group Corr., 696 F. App’x 851, 854 (10th Cir. May 23, 2017)

(unpublished) (quoting Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172, 1179 (10th Cir. 2011)). The “imminent danger” exception has a temporal limitation—[t]he exception is construed narrowly and available only ‘for genuine emergencies,’ where ‘time is pressing’ and ‘a threat . . . is real and proximate.’” Lynn v. Roberts, No. 11-3073-JAR, 2011 WL 3667171, at *2 (D. Kan. Aug. 22, 2011) (citation omitted). “Congress included an exception to the ‘three strikes’ rule for those cases in which it appears that judicial action is needed as soon as possible to prevent serious physical injuries from occurring in the meantime.’” Id. (citation omitted). The Court has examined the Complaint and finds no showing of imminent danger of serious physical injury. Accordingly, pursuant to § 1915(g) Plaintiff may not proceed in forma

pauperis in this civil action. Plaintiff is given time to pay the full $405.00 district court filing fee2 to the Court. If he fails to pay the full fee within the prescribed time, the Complaint will be dismissed based upon Plaintiff’s failure to satisfy the statutory district court filing fee required by 28 U.S.C. § 1914. IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s motion for leave to proceed in forma pauperis (Doc. 2) is denied.

(dismissed for failure to state a claim upon which relief may be granted); Cooley v. McGovern, Case No. 09-cv- 3098-SAC (D. Kan. June 26, 2009) (same); Cooley v. Diamond Medical, Case No. 22-cv-3145-SAC (D. Kan. August 11, 2022) (same). 2 If a person is not granted in forma pauperis status under § 1915, the fee to file a non-habeas civil action includes the $350.00 fee required by 28 U.S.C. § 1914(a) and a $55.00 general administrative fee pursuant to § 1914(b) and the District Court Miscellaneous Fee Schedule prescribed by the Judicial Conference of the United States. IT IS FURTHER ORDERED that Plaintiff is granted until November 29, 2024, to submit the $405.00 filing fee. The failure to submit the fee by that date will result in the dismissal of this matter without prejudice and without additional prior notice. IT IS SO ORDERED. Dated October 29, 2024, in Kansas City, Kansas.

S/ John W. Lungstrum JOHN W. LUNGSTRUM UNITED STATES DISTRICT JUDGE