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Anderson v. Hobbs

United States District Court, W.D. Arkansas, Hot Springs Division

August 13, 2014

JAMES KEN ANDERSON, Plaintiff,
v.
RAY HOBBS, Director of the Arkansas Department of Correction; WENDY KELLY; LARRY MAY; WARDEN MARSHAL DALE REED; MIKE LITTLETON, Maintenance Work Supervisor; ERIC FAIN, Work Supervisor; and DR. GREGORY SCOTT McKINNEY, Corizon Medical Service, Defendants.

REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

BARRY A. BRYANT, Magistrate Judge.

Plaintiff, James K. Anderson, an inmate of the Tucker Unit of the Arkansas Department of Correction (ADC), brings this pro se civil rights action pursuant to 42 U.S.C. § 1983, the Rehabilitation Act, and the Americans with Disabilities Act. Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3)(2009), the Honorable Susan O. Hickey, United States District Judge, referred this case to the undersigned for the purpose of making a report and recommendation. Plaintiff was initially granted in forma pauperis (IFP) status. For the reasons stated below, the I recommend the Court find such status was improvidently granted, and this case be dismissed in its entirety unless Plaintiff pays the full filing fee with in ten (10) days.

I. Introduction

After initial screening by the undersigned, Plaintiff was initially granted leave to proceed IFP. (ECF No. 3). Thereafter, the Defendants filed two motions (ECF Nos. 28 & 55) to dismiss, both asking the Court to revoke Plaintiff's IFP status, pursuant to the Prison Litigation Reform Act (PLRA), Section 1915, which governs proceedings filed IFP. Defendants claimed Plaintiff had previously filed more than three frivolous law suits. On October 13, 2013, I entered a Report and Recommendation recommending denial of the motions to dismiss and finding Plaintiff had "alleged sufficient facts to indicate that he is under imminent danger of serious physical injury" and was thus entitled to IFP status despite his having previously filed several frivolous complaints. Judge Hickey adopted this recommendation and denied the motions to dismiss. This litigation has proceeded and now pending before the Court are two Motions for Preliminary Injunction (ECF Nos. 70 and 77) along with several other motions, filed by Plaintiff. Upon review the complaint, amended complaint and the other pleadings filed in this case subsequent to the Plaintiff being granted IFP status, the Court finds Plaintiff's IFP status was improvidently granted.

II. Plaintiff's Past filings

Plaintiff has at least three previous cases, in the Eastern and Western Districts of Arkansas, which were dismissed as frivolous for purposes of § 1915. These cases are:

- Anderson v. Byus, et al., 5:02-cv-00189 (E.D. Ark.)(dismissal November 15, 2002, noting it constituted a strike)
- Anderson v. Langley, 4:02-cv-04068 (W.D. Ark.)(dismissed for failure to state a claim and frivolous claims on 9/17/2002);
- Anderson v. Johnson, et al., 4:99-cv-04050 (W.D. Ark.)(ifp revoked and case dismissed on 6/30/1999);
- Anderson v. Arkansas Department of Correction, 4:97-cv-4116 (W.D. Ark.)(dismissed 9/15/1997 for failure to state a claim and frivolous claims);and
- Anderson v. Texarkana Regional Correctional Center, et al., No. 4:97-cv-4021 (W.D. Ark.)(dismissed 4/22/1997 for failure to state a claim and frivolous claims).

He has also been denied IFP status by virtue of the three strikes provision of § 1915 in a number of other cases.

- Anderson v. Huckabee, et al., 1:04-cv-00017 (E.D. Ark.)(dismissed March 1, 2004 no showing of ...

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