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Jones v. Hobbs

November 2, 2007

LARRY WAYNE JONES ADC # 70147 PLAINTIFF
v.
RAY HOBBS, CHIEF DEPUTY DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION; GRANT HARRIS, WARDEN, VARNER SUPER MAX, ARKANSAS DEPARTMENT OF CORRECTION; DOE, JOHN OR JANE, ADMINISTRATOR OF RELIGIOUS SERVICES, ARKANSAS DEPARTMENT OF CORRECTION; AND CHARLES FREYDER, SENIOR CHAPLAIN, VARNER SUPER MAX, ARKANSAS DEPARTMENT OF CORRECTION DEFENDANTS



ORDER

Plaintiff, an inmate incarcerated in the Varner Super Max Unit of the Arkansas Department of Correction, filed a pro se Complaint (docket entry #2), pursuant to 42 U.S.C. § 1983, accompanied by an Application to Proceed In Forma Pauperis (docket entry #1). For the reasons stated below, the Court orders that Plaintiff's claims be dismissed, pursuant to the three-strikes provision of the Prison Litigation Reform Act ("PLRA").

Under the three-strikes provision of the PLRA, the Court must dismiss a prisoner's in forma pauperis action at any time, sua sponte or upon a motion of a party, if it determines that 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." 28 U.S.C. § 1915(g). The Eighth Circuit has explicitly upheld the constitutionality of the three-strikes provision. Higgins v. Carpenter, 258 F.3d 797 (8th Cir. 2001).

During Plaintiff's incarceration, he has filed (at least) three prior § 1983 complaints in United States District Court for the Eastern District of Arkansas that have been dismissed as frivolous.*fn1 Furthermore, Plaintiff's allegations, concerning a violation of the Religious Land Use and Incarcerated Persons Act and free exercise claims related to the denial of a specific diet, do not amount to a claim that he was or is in imminent danger. See McAlphin v. Toney, 281 F.3d 709 (8th Cir. 2002) (emphasizing that, to qualify for the imminent danger exception to the three-strikes provision, a plaintiff must allege facts establishing that he or she was in imminent danger of serious bodily injury at the time of filing the complaint). Lastly, the Court notes that Plaintiff's claims concerning his desire for a diet free of animal products have been exhaustively addressed in Jones v. Banks et al., 5:02CV00415 SWW, which was decided in these same Defendants' favor following a jury trial in 2006.*fn2

For all these reasons,

IT IS THEREFORE ORDERED that Plaintiff's claims are DISMISSED WITHOUT PREJUDICE. Should Plaintiff, within ten (10) days of the date of entry of this Order, submit the statutory filing fee of $350.00 to the Clerk of the Court, ...


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