United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
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. 8.) 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.
responded to the court's order on November 30, 2017.
(See Filing No. 11; Filing No.
12.) Chapman argues he should be allowed to proceed in
forma pauperis in this action because his constitutional
rights were violated when the Douglas County District Court
(“state district court”) entered an order finding
him incompetent to stand trial in violation of Neb. Rev.
Stat. § 29-1823 and committed him to the Lincoln
Regional Center (“LRC”) until his competency is
restored. Though not explicitly stated, the court could infer
Chapman is alleging he is under imminent danger of serious
physical injury based on his claims that Defendant Judge
Leigh Ann Retelsdorf entered a verbal order on August 21,
2017, that the LRC can “force drugs against
Plaintiff's will.” (Filing No. 11 at CM/ECF
p.2; see also Filing No. 1 at CM/ECF
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.” Martin v. Shelton, 319 F.3d 1048,
1050 (8th Cir. 2003). Moreover, forced administration of
medication does not necessarily create an imminent danger of
serious physical injury. See Holbach v. North Dakota,
No. 3:13-CV-38, 2014 WL 295153, *2 (D.N.D. Jan. 24,
2014) (finding plaintiff's conclusory statement that he
was being drugged “to kill [him] . . . and silence
[him]” by state hospital after being found incompetent
to stand trial was insufficient to implicate the imminent
danger exception); Robinson v. Stoddard, No.
1:13-cv-754, 2013 WL 3974715, *2 (W.D.Mich. Aug. 2, 2013)
(finding plaintiff's claim that being subjected to forced
unidentified medication is life-threatening is “wholly
irrational” and does not implicate the imminent danger
exception); Smith v. Rohling, Civ. No. 0-3184- SAC,
2011 WL 1326038, *2 (D.Kan. Apr. 6, 2011) (holding the
involuntary administration of psychotropic medication
following a hearing and physician review did not put inmate
in imminent danger of serious physical harm); Staley v.
Yu, No. 9:07-159-PMD-GCK, 2007 WL 1149874, *1 (D.S.C.
Apr. 11, 2001) (Failure to demonstrate that forced
psychotropic medication was necessarily dangerous or that it
caused the plaintiff to suffer any specific injury did not
meet the showing of imminent physical harm required under
alleged harm Chapman complains about is speculative at best
and his allegations do not support a finding that Chapman is
“under imminent danger of serious physical
injury.” 28 U.S.C. § 1915(g). By his own
admission, Plaintiff is still housed at the Douglas County
Department of Corrections and has not been moved to the LRC
due to space being unavailable. (Filing No. 12 at CM/ECF
p.3.) Plaintiff has not alleged that he was being
forcibly medicated at the time his Complaint was filed or
that he is currently. The competency evaluation attached to
Plaintiff's Complaint only suggests that “[i]t is
considered desirable that [LRC] be allowed to treat him with
medicine involuntarily” should Plaintiff “refuse
to take it.” (Filing No. 1 at CM/ECF p.17.)
Plaintiff does not allege what type of medication would be
forced on him or whether such medication would cause
Plaintiff to suffer any specific injury. Moreover, as
Plaintiff alleges, any plans to forcibly medicate Plaintiff
would be with the state district court's authorization
and subject to review in that court or the Nebraska appellate
foregoing reasons, the court finds that Chapman has failed to
demonstrate that he is under imminent danger of serious harm.
Accordingly, he is prohibited from proceeding IFP pursuant to
28 U.S.C. § 1915(g). Because Chapman has not paid the
$400.00 filing and administrative fees and for lack of good
cause shown, this matter is dismissed without prejudice.
THEREFORE ORDERED that:
Chapman's Motion for Leave to Proceed in Forma Pauperis
(Filing No. 2) is denied.
Chapman's Motion for Order (Filing No. 9) and
Motion to Appoint Counsel (Filing No. 10) are denied
case is dismissed without prejudice and a separate judgment
will be entered in accordance with this Memorandum and Order.
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.
 Plaintiff attempted to review the
state district court's order committing him to the LRC
for restoration of competency, but his appeal was dismissed
on November 13, 2017, as untimely. (See Filing No. 12 at
CM/ECF pp.8, 11.). The attachments to Plaintiff's
pleadings and his state case records, available to this court
on-line, show that Plaintiff's case, State v.
Chapman, Case No. CR17-729, District Court of Douglas
County, Nebraska, is still pending. See Stutzka v.
McCarville,420 F.3d 757, 760 n.2 (8th Cir. 2005) (court
may take judicial notice of judicial opinions and public
records). The state district court is required to hold a
hearing in Plaintiff's criminal case “[w]ithin six
months after the commencement of the treatment ordered . . .,
and every six months thereafter . . . to determine . . .
whether the accused is competent to stand trial.” Neb.
Rev. Stat. § 29-1823. Thus, Plaintiff will have
opportunities to challenge any future competency and
treatment determinations in state court. SeeState ...