Henard v. Gonsalves, et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 23–cv–03069–DDD–MDB
BOBBY E HENARD,
Plaintiff,
v.
GONSALVES,
DECARLO, and
CARNAHAN,
Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Magistrate Judge Maritza Dominguez Braswell
This matter is before the Court on the Defendants’ Motion to Find Plaintiff in Violation
of the “Three Strikes” Rule Pursuant to 28 U.S.C. § 1915(g). ([“Motion”], Doc. No. 62.) Plaintiff
has not responded to the Motion and the time to do so has lapsed. (See Doc. No. 69.) After
reviewing the Motion, briefing and relevant law, the Court respectfully RECOMMENDS that
the Motion be GRANTED and this case be ADMINISTRTIVELY CLOSED.
SUMMARY FOR PRO SE PLAINTIFF
The “three strikes” rule under the Prison Litigation Reform Act of 1995 requires
‘frequent filer’ prisoners to prepay the entire filing fee before federal courts consider their
claims. This means that if three or more of your prior actions were dismissed for failure to state a
claim, the privilege of filing in forma pauperis will be revoked. Defendants have filed a Motion
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asking the Court to find that the three strikes rule applies here because at least five of your prior
claims have been dismissed in the manner contemplated by the PLRA. You have not contested
Defendants’ position, and the Court finds that Defendants are correct. Thus, the Court is
recommending that the Motion be granted and that your in forma pauperis status be revoked.
This is only a high-level summary of the Court’s decision, which is set forth below, along
with information about your right to object to this decision.
ANALYSIS
In his Complaint, Plaintiff brings claims of excessive force and deliberate indifference in
connection with alleged events in November 2021 and April 2023. (See generally Doc. No. 20.)
In August 2025, Jefferson County moved to revoke Plaintiff’s in forma pauperis status in
this, and all pending cases against it or one of its officials. (See 1:24-cv-03086-DDD-MDB;
1:23-cv-01523-DDD-MDB; 1:21-cv-03123-WJM-MDB.1) Defendants contend that, “[b]ecause
Mr. Henard has at least five (5) strikes against him under Section 1915(g), he should be
prohibited from further proceeding in forma pauperis.” (Doc. No. 62 at 3 (footnote omitted).) As
a remedy, Defendants ask the Court to administratively close the matter until Plaintiff pays his
filing fees or dismiss this matter for failure to prosecute. (Id. at 5.)
“Congress first enacted an in forma pauperis statute in 1892.” Coleman v. Tollefson, 575
U.S. 532, 535 (2015). It recognized that “no citizen sh[ould] be denied an opportunity to
commence, prosecute, or defend an action, civil or criminal, in any court of the United States,
solely because his poverty makes it impossible for him to pay or secure the costs.” Id. (quoting
1 In the case before the Honorable William J. Martinez, Jefferson County’s Motion was granted
on December 3, 2025. (See 1:21-cv-03123-WJM-MDB, at ECF 304.)
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Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 342 (1948)). Congress “therefore
permitted a citizen to ‘commence and prosecute to conclusion any such ... action without being
required to prepay fees or costs, or give security therefor before or after bringing suit.” Id. “The
statute permits an individual to litigate a federal action in forma pauperis if the individual files an
affidavit stating, among other things, that they are unable to prepay fees ‘or give security
therefor’” Henard v. Albers, 2025 WL 3470309, at *1 (D. Colo. Dec. 3, 2025) (quoting 28
U.S.C. § 1915(a)(1)).
“But Congress also recognized that this statutory scheme could lead to the filing of
‘frivolous, malicious, or repetitive lawsuits.’” Id. (quoting Neitzke v. Williams, 490 U.S. 319, 324
(1989)). “So Congress enacted the Prison Litigation Reform Act of 1995, which ‘contains a
variety of provisions designed to bring this litigation under control.’” Id. (quoting Woodford v.
Ngo, 548 U.S. 81, 84 (2006)). Pertinent to this matter is the “three strikes” rule contained in 28
U.S.C. § 1915(g), which reads:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil
action or proceeding [in forma pauperis] if the prisoner has, on 3 or more prior
occasions, while incarcerated or detained in any facility, 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,
unless the prisoner is under imminent danger of serious physical injury.
“[T]he ‘three strikes’ provision of the [in forma pauperis] statute applicable to indigent
prisoners[ ] requires so-called ‘frequent filer’ prisoners to prepay the entire filing fee before
federal courts may consider their civil actions and appeals.” Hafed v. Fed. Bureau of Prisons,
635 F.3d 1172, 1176 (10th Cir. 2011) (quoting § 1915(g)) (alteration in original).
Plaintiff is a frequent litigator in this District. Defendants assert that Plaintiff has filed 19
pro se lawsuits in the District of Colorado. (Doc. No. 62 at 1; id. at n.1 (listing lawsuits and their
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case numbers).) According to Defendants, “a [c]ourt in this District [has] entered a final
judgment dismissing [Plaintiff’s] action for failing to state a claim within the meaning of Section
1915(g)” on five different occasions. (Id. at 3.) Specifically, Defendants cite the following cases,
which are included as exhibits to their Motion:
• 	23-cv-00287-LTB-KLM, at pp. 2–4 (offering Mr. Henard the opportunity to
amend his Complaint to comply with Rule 8(a)), p. 8 (dismissing for failing to
comply with Rule 8);
• 	23-cv-00577-LTB-KLM, at pp. 2–4 (same), p. 10 (same);
• 	23-cv-01407-LTB-SBP, at pp. 3–4 (same), p. 11 (same);
• 	23-cv-02995-SBP, at pp. 2–3 (same), p. 10 (same);
• 	23-cv-03072-LTB-SBP, at pp. 2–3 (same), p. 11 (same).
(Doc. Nos. 62-2; 62-3; 62-4; 62-5; 62-6.) The Court has reviewed these dismissal orders
and concludes they qualify as “strikes” under section 1915(g). Plaintiff does not appear to
contest this conclusion as he has not responded to the Motion.2 Accordingly, the Court
concludes Plaintiff is no longer entitled to the benefits provided by the in forma pauperis
statute.
CONCLUSION
For the foregoing reasons, the Court respectfully RECOMMENDS that Defendants’
Motion to Find Plaintiff in Violation of the “Three Strikes” Rule Pursuant to 28 U.S.C. § 1915(g)
2 Plaintiff did respond to Jefferson County’s Motion in 1:24-cv-03086-DDD-MDB. (See 1:24-cv-
03086-DDD-MDB, ECF 42.) That response did not contest the County’s position that Plaintiff
has indeed been given three strikes under section 1915(g). Plaintiff instead argued that the
County’s motion should nevertheless be denied because he satisfied the “immanent danger”
exception to section 1915(g). (See 1:24-cv-03086-DDD-MDB, ECF 42.) However, the Court
rejected Plaintiff’s argument and recommended that the County’s Motion be granted. ((See 1:24-
cv-03086-DDD-MDB, ECF 49 at 5–7.)
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(Doc. No. 62) be GRANTED, Plaintiff’s in forma pauperis status be REVOKED, and this case
be ADMINISTRATIVELY CLOSED unless and until (1) Plaintiff prepays the entire filing fee
and (2) with respect to Plaintiff’s ongoing competency issue, the parties show good cause to
reopen the case as outlined in the order at Doc. No. 46.
The Clerk of Court is directed to mail a copy of this Recommendation to Plaintiff:
Bobby E Henard
#01138778
Jefferson County Detention Facility
P.O. Box 16700
Golden, CO 80402-6700
ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of the Recommendation, any party may
serve and file written objections to the Magistrate Judge’s proposed findings and
recommendations with the Clerk of the United States District Court for the District of Colorado.
28 U.S.C. ' 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A
general objection that does not put the district court on notice of the basis for the objection will
not preserve the objection for de novo review. “[A] party’s objections to the magistrate judge’s
report and recommendation must be both timely and specific to preserve an issue for de novo
review by the district court or for appellate review.” United States v. One Parcel of Real Prop.
Known As 2121 East 30th Street, Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to
make timely objections may bar de novo review by the district judge of the magistrate judge’s
proposed findings and recommendations and will result in a waiver of the right to appeal from a
judgment of the district court based on the proposed findings and recommendations of the
magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (a district court’s
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decision to review a magistrate judge’s recommendation de novo despite the lack of an objection
does not preclude application of the “firm waiver rule”); One Parcel of Real Prop., 73 F.3d at
1059-60 (a party’s objections to the magistrate judge’s report and recommendation must be both
timely and specific to preserve an issue for de novo review by the district court or for appellate
review); Int’l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir.
1995) (by failing to object to certain portions of the magistrate judge’s order, cross-claimant had
waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342,
1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal
the magistrate judge’s ruling). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th
Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).
Dated this 29 th day of December, 2025.
BY THE COURT:
___________________________
Maritza Dominguez Braswell
United States Magistrate Judge
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