Waterman (ID 2100218264) v. Leiker et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BRIAN MICHAEL WATERMAN,
Plaintiff,
v. 	CASE NO. 26-3023-JWL
WENDY LEIKER, et al.,
Defendants.
MEMORANDUM AND ORDER
Plaintiff brings this pro se civil rights case under 42 U.S.C. § 1983. Plaintiff is incarcerated
at the Ellsworth Correctional Facility in Ellsworth, Kansas (“ECF”).
Plaintiff alleges that upon his arrival at ECF in July 2025, the Defendants “reset all [his]
medical for [his] right shoulder deliberately delaying and interfering with any ortho an[d] surgery
needed for [his] torn shoulder, an[d] refuse [him] all other medical needs such as dental services,
and eye glasses.” (Doc. 1, at 2–3.) Plaintiff alleges that when he arrived at ECF he had a chronic
care visit with Defendant APRN Nikki Howell, and she stated that she saw an orthopedic consult
approval and would follow up on it. Id. at 3. Plaintiff claims that a month later APRN Howell
stated that there was no such order and Defendant HSA Wendy Leiker “went along with her.” Id.
Plaintiff alleges that the medical delay regarding his shoulder has been ongoing for four years and
causes daily pain. Id. at 6. Plaintiff claims that he was seen again by APRN Howell and HSA
Leiker in September 2025, and was told that it would take at least nine months to reschedule an
ortho appointment, that there was no surgery for a torn shoulder, and that Plaintiff would have to
live with it. Id. Plaintiff claims his shoulder has been torn since July 2022. Id. at 7.
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Plaintiff claims that he received an eye exam in September 2025, and was told he would
be scheduled to see an eye doctor. 	Id. at 3. 	Plaintiff claims there is a delay in receiving new
glasses, his eyeglasses are ten years old, and he experiences headaches four days out of the week.
Id. at 8.
He also claims he is being denied dental care. Id. at 10. Plaintiff states that from August
to November 2025, he placed two sick calls regarding a cavity. Id. at 4. Plaintiff acknowledges
that he saw a dentist and claims his cavity was verified. Id. 	Plaintiff claims Defendants denied
his appointment and “reset his medical.” Id. at 10. Plaintiff claims he has not had his teeth cleaned
for ten years. Id.
Plaintiff has filed prior cases in this Court regarding his medical care for his shoulder. See
Case Nos. 23-3182, 24-3159, and 24-3239. 	Plaintiff filed a case regarding inadequate care and
treatment for his shoulder injury based on his care while housed at the El Dorado Correctional
Facility (“EDCF”). See Waterman v. Harred, Case No. 23-3182-DDC-RES, Doc. 101, at 3 (D.
Kan.). In that case, the Court found that in July 2022, Plaintiff sought treatment at the Hutchinson
Correctional Facility (“HCF”) for pain in his right shoulder, which he injured while lifting weights.
Id. at 4. 	While at HCF, Plaintiff received an x-ray and physical therapy for his shoulder. 	Id.
Plaintiff transferred to EDCF in January 2023. Id. Plaintiff alleged there was a delay in receiving
his MRI after his transfer and his March 8 appointment was rescheduled to March 29. Id. Plaintiff
received an MRI with the doctor providing that the results suggested tendinopathy or partial tear
of the supraspinatus. Id. The doctor requested outpatient orthopedic care for Plaintiff. Id. 	The
Court dismissed Plaintiff’s claims for monetary damages against KDOC Defendants in their
official capacities, denied Plaintiff’s request for injunctive relief moot, and found that Plaintiff
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failed to exhaust his administrative remedies for his claims. Id. at 8, 9, 15. Plaintiff filed a Notice
of Appeal, and the case is currently pending on appeal.
In Case No. 24-3159, Plaintiff alleged that on September 13, 2024, he entered the Cherokee
County Jail with a torn shoulder and it took a week to be seen by medical, and he did not see the
orthopedic doctor until August 9, 2024. Waterman v. Cherokee Cnty., Kansas, Bd. of Comm’rs,
Case No. 24-3159-JWL, Doc. 3, at 1 (D. Kan. Sept. 27, 2024). The Court denied Plaintiff leave
to proceed in forma pauperis due to his three-strikes status, and dismissed the case when Plaintiff
failed to pay the filing fee. Id. at Docs. 3, 5.
In Case No. 24-3239, Plaintiff alleged that he reinjured his shoulder at HCF and was not
allowed to see a doctor or orthopedist, or to have surgery. Waterman v. Zmuda, Case No. 24-3239-
JWL, Doc. 11, at 2 (D. Kan. June 6, 2025). 	The Court dismissed the case for failure to state a
claim, finding that:
The Court found in the MOSC that Plaintiff’s allegations do not show a
complete lack of medical care, but rather show Plaintiff’s disagreement
regarding the proper course of treatment or medication. He prefers to see
an orthopedist now, as opposed to after completion of his physical therapy
sessions. He is receiving medication, but prefers different medication.
Plaintiff takes issue with being required to complete his physical
therapy sessions prior to seeing an orthopedist. Plaintiff has not
shown that this course of treatment is the result of deliberate
indifference. Plaintiff has not been denied all access to a doctor,
orthopedist, or surgery. He is merely required to complete his physical
therapy sessions first. Plaintiff acknowledges that he has seen the
APRN and a physical therapist, and was ordered to conduct rubber
band exercises and weekly physical therapy sessions for six weeks
before seeing an orthopedist. Plaintiff does not indicate that a
medical provider has informed him that he will not be able to see a
doctor or orthopedist after he finishes his physical therapy, or that
he will not be allowed to have surgery.
Plaintiff has failed to show that any defendant disregarded an
excessive risk to his health or safety or that they were both aware of
facts from which the inference could be drawn that a substantial risk
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of serious harm existed, and also drew the inference. Plaintiff’s
claims suggest, at most, negligence, and are subject to dismissal.
Id.
Plaintiff has now filed the instant case, claiming he is receiving inadequate medical care at
ECF. 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
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)).
“Vague and utterly conclusory assertions are insufficient.” 	Id. 	The harm must be imminent or
occurring at the time the complaint is filed, “allegations of past harm do not suffice.” Id. (citations
omitted). 	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’
1 Prior to filing the instant complaint, the Court finds at least three prior civil actions filed by Plaintiff that qualify as
“strikes” under § 1915(g). See In re Brian Michael Waterman, Case No. 21-3049, Doc. 010110507615, at 2 (10th Cir.
April 14, 2021) (finding that Waterman failed to present even a colorable claim to mandamus relief and dismissal of
his petition as frivolous counts as a strike for purposes of the three-strikes provision in 28 U.S.C. § 1915(g));
Waterman v. Crawford County Jail, Case No. 18-3035-SAC, Doc. 28 (D. Kan. June 4, 2018) (dismissing for failure
to state a claim); Waterman v. Tippie, Case No. 18-3295-JTM-GEB, Doc. 22 (D. Kan. July 8, 2019) (dismissing for
failure to state a claim).
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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 found no showing of imminent danger in Case No. 24-3159. See Waterman v.
Cherokee Cnty., Kansas, Bd. of Comm’rs, Case No. 24-3159-JWL, Doc. 3, at 2 (D. Kan. Sept. 27,
2024) (citing see Shaw v. Toole, 2015 WL 4756741, at *2–3 (S.D. Ga. 2015) (finding plaintiff
failed to set forth any specific, non-conclusory allegation indicating he was suffering from
imminent danger where plaintiff asserted that he continued to be denied physical therapy and that
his “condition was worsening and pains”); Hartley v. Ellis, 2009 WL 2634208, at *4 (N.D. Fla.
2009) (finding no showing of imminent danger where “plaintiff’s allegations of a self-diagnosed
condition of ‘severe gross nerve damage’ requiring pain medication and physical therapy through
recreational privileges are unsupported”); White v. State of Colo., 157 F.3d 1226, 1231–32 (10th
Cir. 1998) (concluding that plaintiff “failed to raise a credible allegation that he is in imminent
danger of serious physical harm” where plaintiff did not specify “even the general nature of his
‘serious physical injury’ ”).
The Court has examined the Complaint in the instant case and likewise finds no showing
of imminent danger of serious physical injury. 	Plaintiff continues to disagree with the medical
care he has been receiving for his shoulder since 2022. He also takes issue with not being provided
with new eyeglasses. He acknowledges that he has seen a dentist, but claims there is a delay in
scheduling because his medical was “reset” when he arrived at ECF. 	The imminent danger
exception is for genuine emergencies, where time is pressing and there is real and proximate threat.
Accordingly, pursuant to § 1915(g) Plaintiff may not proceed in forma pauperis in this civil action.
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Plaintiff is given time to pay the full $405.00 district court filing fee2 to the Court. 	Failure to
respond within the prescribed time will result in the dismissal of this matter without prejudice and
without additional prior notice.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff is denied leave to
proceed in forma pauperis.
IT IS FURTHER ORDERED that Plaintiff is granted until March 11, 2026, to submit
the $405.00 filing fee. The failure to respond by the deadline will result in the dismissal of this
matter without prejudice and without additional prior notice.
IT IS SO ORDERED.
Dated February 11, 2026, in Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE
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.
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