United States District Court, D. Nebraska
REGINALD G. BAKER, SUZANNE LEWIS, in her official capacity as Power of Attorney for Plaintiff; KIMBERLY NOAHR, Petitioner elect; and MINOR CHILDREN OF THE ABOVE, Plaintiffs,
J.D., CEO Alivation Health; ANNETTE KAY MARGET, HARBANS S. DEOL, in his official capacity as Director of Health Services for Nebraska Department of Correctional Services; DR. JEFFREY P. KASSELMAN, SARA BETH ALLEN, DR. JEFFREY A. DAMME, M.D.; DOES 1-6, Nurses; PETE RICKETTS, in his official capacity as Govenor in and for State of Nebraska; SCOTT R. FRAKES, in his official capacity as Director of NDOCS; JOHN BOLDUC, in his official capacity as Superintendant of Nebraska State Patrol; R. HOLLEY, BRAD HANSEN, SCOTT BUSBOOM, c/m Ruede; and LAWYERS, Defendants.
MEMORANDUM AND ORDER
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the court on Plaintiff Reginald G.
Baker's motion for status (filing no. 14), which
is granted. On April 2, 2019, the court ordered Plaintiff to
show cause why he is entitled to proceed in forma pauperis in
this action. (Filing No. 11.) The court identified
three cases that were brought by Plaintiff that may have been
dismissed because they were frivolous, malicious, or failed
to state a claim. The three cases identified by the court
were Baker v. Polk County, et al., 4:94CV70913-HDV
(S.D. Iowa), dismissed as frivolous on February 6, 1995;
Baker v. Dodge County, et al., Filing No.
9, 8:96CV181-TMS (D. Neb.), dismissed as frivolous or
malicious on July 3, 1996; and Baker v. Retelsdorf, et
al., Filing Nos. 30 & 31,
4:14CV3103-RGK-PRSE (D. Neb.), dismissed without prejudice
for failure to state a claim on April 20, 2015. 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. § 1915(g).
filed a response to the court's order on April 10, 2019.
(Filing No. 13.) Plaintiff asserts that in Baker
v. Polk County, et al., 4:94CV70913-HDV (S.D. Iowa), the
“case was settled out of court by Plaintiff's
court-appointed counsel- Baird, Laird, McEachen and Pedersen
of Omaha, NE on the day that the case was scheduled to be
heard by the court.” (Id. at CM/ECF p. 1.)
Plaintiff also argues that if he is not allowed to proceed
with his action, “[i]t gives the Defendants further
leave to cause further violations of Plaintiff's rights
and State laws, to possibly cause future harm or injury to
Plaintiff, at the hands of the Defendants to neglect
Plaintiff's right to proper and adequate Medical and
Mental Health Treatment.” (Id. at CM/ECF p.
docket sheet in Baker v. Polk County, et al.,
4:94CV70913-HDV (S.D. Iowa), available to this court via
PACER, reflects that Plaintiff's motion to appoint
counsel was denied in that case when the United States
District Court for the Southern District of Iowa dismissed
Plaintiff's amended complaint as frivolous upon further
initial review. The docket sheet does not reflect that the
case was ever “scheduled to be heard by the
court.” Thus, the available court records in Baker
v. Polk County, et al., 4:94CV70913-HDV (S.D. Iowa),
directly contradict Plaintiff's allegation regarding
settlement of the case, and the court finds Plaintiff has
failed to establish good cause why this case should not be
considered a “strike” pursuant to 28 U.S.C.
court has determined that three federal court cases brought
by Plaintiff, while a prisoner, were dismissed as frivolous
or for failure to state a claim, the court must consider
whether Plaintiff has demonstrated he “is under
imminent danger of serious physical injury.” 28 U.S.C.
§ 1915(g). The court has considered Plaintiff's
response to the court's show cause order and the
Complaint and finds his allegations fail to establish a
threat of serious injury sufficient to overcome the
“three strikes” bar. Plaintiff generally alleges
that, between June and October of 2018, he received
inadequate medical and mental health care while incarcerated
at the Tecumseh State Correctional Institution and suffered a
stroke as a result. However, complaints solely about past
alleged harms are insufficient to show the imminent physical
harm required under § 1915(g). See Martin
v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003)
(“[T]he 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.”). Accordingly, IT IS ORDERED that:
1. Plaintiff's motion for status (filing no. 14)
2. Plaintiff's Motion for Leave to Proceed in Forma
Pauperis (filing no. 2) is denied.
3. Plaintiff's other pending motions (filing nos.
7, 8, 9, & 13) are
denied as moot.
4. This case is dismissed without prejudice and a separate
judgment will be entered in accordance with this Memorandum
5. Any notice of appeal filed by Plaintiff must be
accompanied by the $505.00 appellate filing fee because
Plaintiff will not be allowed to proceed in forma pauperis on
 In No. 4:14CV3103-RGK-PRSE, this court
provided Plaintiff with a copy of the docket sheet in
Baker v. Polk County, et al., 4:94CV70913-HDV (S.D.