United States District Court, W.D. Arkansas, Hot Springs Division
O. Hickey, United States District Judge
the Court is the Report and Recommendation filed May 5, 2016,
by the Honorable Mark E. Ford, United States Magistrate Judge
for the Western District of Arkansas. ECF No. 9. Judge Ford
recommends that Plaintiff Patrick Sherman’s application
to proceed in forma pauperis (IFP) be denied.
Sherman has responded with objections. ECF No. 10. The Court
finds the matter ripe for consideration.
is currently incarcerated in the Arkansas Department of
Correction, Varner Supermax Unit. He files this civil rights
action pursuant to 42 U.S.C. § 1983, and requests that
he be granted IFP status. The magistrate judge recommends
that Sherman’s IFP application be denied pursuant to 28
U.S.C. § 1915(g).
1915(g) limits the ability of a prisoner to obtain IFP status
when he has filed at least three claims that have been
dismissed as frivolous, malicious, or for failure to state a
claim. 28 U.S.C § 1915(g). However, a prisoner who would
otherwise be prohibited under this section from obtaining IFP
status may proceed IFP if he is “under imminent danger
of serious physical injury.” 28 U.S.C. §1915(g).
This provision is commonly referred to as the “three
strikes rule.” In the Report and Recommendation, the
magistrate judge identifies three cases in which
Sherman’s complaint has been dismissed. The magistrate
judge concludes that each of these cases qualifies as a
strike against Sherman under § 1915(g). One such case is
Farver v. Evans, 2:01-cv-00224 (E.D. Ark. 2002), in
which Sherman was identified as one of four plaintiffs.
Sherman argues that the Farver case should not be
considered a strike against him because he “never knew
or had any idea that he was a [p]laintiff” in the
Farver case. ECF No. 10, p. 5. The Court has
reviewed the Farver case and is not convinced that
it should be considered a strike as to Sherman. Nevertheless,
Sherman has filed numerous cases in the Eastern and Western
Districts of Arkansas, several of which have been dismissed
as frivolous or for failure to state a claim. The Court has
identified at least four cases in which Sherman’s IFP
status was denied because of the three strikes rule:
Sherman v. Clark Cnty., 4:12-cv-00728 (E.D. Ark.
2012);Sherman v., Abernathy, et al.,
5:10-cv-353 (E.D. Ark. 2011); Sherman v. Wyatt,
5:10-cv-00026 (E.D. Ark. 2010); Sherman v. Ark.
Dep’t of Corr., 5:02-cv-00339 (E.D. Ark. 2002).
Each of the orders denying IFP status to Sherman identifies
at least three cases that are considered strikes pursuant to
§1915(g). Because Sherman has had at least three
complaints in cases other than Farver dismissed as
frivolous or for failure to state a claim, the Court agrees
with the magistrate judge that Sherman is not eligible for
based on its own de novo review, the Court overrules
Sherman’s objections and adopts the Report and
Recommendation in toto. ECF No. 9. Sherman’s
IFP application (ECF No. 2) is DENIED, and this case is
DISMISSED WITHOUT PREJUDICE to Sherman’s right to
re-open the case upon payment of the filing fee. Plaintiff is
instructed to file a motion to reopen the action upon payment
of the proper filing fee to the Clerk of Court.
the Clerk is directed to provisionally file any new action in
which Patrick Sherman seeks to proceed IFP. The magistrate
judge shall then review the action. If it is a civil action,
rather than a criminal or habeas action, and if Sherman has
not asserted a valid claim that he is under imminent danger
of serious physical injury, the magistrate judge shall
recommend that IFP status be denied.
 In this case, Sherman has not alleged
any facts to indicate that he is under imminent danger of
 The order denying IFP status to
Sherman states that he has filed at least thirty-five
lawsuits in the Eastern District of Arkansas.
 Some of these cases are as follows:
Sherman v. Rhode, et al., 5:96-cv-00365 (E.D. Ark.
dismissed May 19, 1997); Sherman v. Norris, et al.,
5:97-cv-00405 (E.D. Ark. dismissed Aug. 3, 1998); Sherman
v. Corr, Medical Services, et al., 5:01-cv-00161 (E.D.
Ark. dismissed Sep. 18, 2001). In addition, the Court has
identified at least two cases in this district that have been
dismissed as frivolous or for failure to state a claim:
Sherman v. Clark Cnty., et al. 6:13-cv-06017 (W.D.
Ark. dismissed June ...