Cosby v. Gray

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 20 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk

GREGORY D. COSMO COSBY,

Plaintiff-Appellant, No. 04-1286
v. (D. Colo.)
LIEUTENANT H. GRAY, U.S.P. (D.C. No. 04-Z-1194)
Maximum, C. HODGES, S. Officer,
U.S.P. Maximum, HOPE REDDEN, S.
Officer, U.S.P. Maximum, (5)
UNKNOWN JOHN DOES (Use of
Force Team to be determined at a later
date), S. SMITH, SIS Tech, SIS
Department, T. G. WERLICH, Unit
Manager, EXECUTIVE STAFF,
U.S.P. Maximum,

Defendants-Appellees.

ORDER AND JUDGMENT *

Before KELLY , HENRY , and TYMKOVICH , Circuit Judges. **

*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
 Gregory D. Cosmo Cosby is a frequent filer of civil complaints arising from

his incarceration. He appeals the district court’s order dismissing his amended

civil complaint without prejudice. The court also denied Cosby’s motion for

leave to file the complaint based upon a claim of imminent danger of serious

physical injury and to proceed in forma pauperis (IFP) under 28 U.S.C. § 1915.

In addition, the court rejected Cosby’s objections to the magistrate judge’s order

requiring him to cure his illegible handwritten complaint and show cause why his

complaint should not be dismissed for failure to show consistent and long-term

progress toward the repayment of unpaid filing fees from previously filed civil

matters. Taking jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

BACKGROUND

Cosby currently owes at least $732.86 in civil filing fees as a result of six

cases he has filed in this and other courts. The district court previously ordered

that Cosby could not proceed IFP in any action in the Colorado district courts

until he demonstrated over a six month to one-year period that he had made

consistent progress toward the payment of the outstanding unpaid fees. See

Cosby v. Meadors , No. 00-RB-267 (D. Colo. Dec. 2, 2003), aff’d Cosby v.

Meadors , 351 F.3d 1324 (10th Cir. 2003) (setting forth in great detail Cosby’s

long history of failing to pay his filing fees). However, the district court’s order

did allow Cosby to proceed IFP without demonstrating fee progress as long as

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Cosby could show that he is in imminent danger of serious physical injury and his

complaint or petition seeks to redress such danger. See id. ; 28 U.S.C. § 1915(g)

(barring prisoners from proceeding IFP if, on three prior occasions, they brought

actions or appeals that were later deemed frivolous, but allowing prisoners to

proceed IFP regardless if they are “under imminent danger of serious physical

injury”).

Cosby subsequently filed a complaint alleging he was in imminent danger

of physical injury. He alleged (as best we can tell from the handwritten

complaint) that Defendant Gray aggravated Cosby’s preexisting asthmatic

condition by spraying a chemical agent into his cell in February 2004. He also

claims that Gray and other prison guards placed him in restraints that were too

tight. The complaint was filed in June 2004, four months after the events in

question. Accompanying Cosby’s complaint were a motion to proceed IFP and a

motion titled “Plaintiff’s Motion for Leave to File Original Complaint Due to

Imminent Danger.” The magistrate judge found the documents illegible, directed

Cosby to file amended pleadings that were legible, and ordered Cosby to show

cause why his complaint should not be dismissed for failure to demonstrate

progress toward the payment of his outstanding filing fees.

Cosby filed amended pleadings and objected to the magistrate judge’s

rulings. The district court examined Cosby’s pleadings and found Cosby was not

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in imminent danger of serious physical injury since over four months had passed

since the “precipitating incident,” a fact inconsistent with Cosby’s claims. Cosby

also failed to satisfy the court that he had made progress toward the payment of

his outstanding filing fees. As a result, the district court dismissed Cosby’s

amended complaint, overruled his objection to the magistrate judge’s rulings and

order, denied his motion to proceed IFP, and denied his “Motion for Leave to File

Original Complaint Due to Imminent Danger.”

ANALYSIS

Cosby claims the district court abused its discretion when it dismissed his

amended complaint because he is in fact in imminent danger of serious physical

injury. Cosby asserts he was physically injured by a chemical agent that damaged

his lungs and that he continues to suffer from the injuries. We have previously

found that a prisoner fails to qualify for the imminent danger exception under 28

U.S.C. § 1915(g) if his complaint makes only vague and unspecific allegations.

See White v. State of Colo. , 157 F.3d 1226, 1231-32 (10th Cir. 1998). In his

complaint, Cosby sets forth no facts or evidence that demonstrate what, if any,

physical harm will arise if legal action is not immediately taken. We agree with

the district court that the passage of four months from the time of the alleged

injury and the filing of the complaint belies any danger. Thus, we affirm the

district court’s finding that Cosby was and is not in imminent danger.

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 In light of the fact that there is no threat of imminent serious injury,

Cosby’s complaint cannot proceed unless he demonstrates that he has made

consistent and long-term progress toward the payment of his outstanding district

court filing fees. Cosby claims that he paid $105 toward outstanding fees in his

habeas case on appeal to this court and thus he has made the requisite

demonstration. However, Cosby is required to demonstrate payment toward the

filing fees of his various civil claims in district court. Cosby cannot make any

such demonstration because he has not made any payments for, let alone

consistent and long-term progress toward, the filing fees owed in those cases.

Therefore, we find the district court did not err in dismissing Cosby’s amended

complaint without prejudice for failure to comply with the court’s order. The

court similarly did not err in denying his motion for leave to proceed IFP and for

leave to file his amended complaint.

We deny Cosby’s motions to proceed IFP in this court and to dismiss or add

certain additional defendants.

WE AFFIRM.

Entered for the Court

Timothy M. Tymkovich
Circuit Judge

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