United States District Court, E.D. Arkansas, Pine Bluff Division
JERRY J. ELLIS, ADC #78658, Plaintiff,
LARRY MAY, Ex-Chief Deputy Director Arkansas Department of Correction; et al., Defendants.
J. Ellis, Plaintiff, Pro Se.
PROPOSED FINDINGS AND RECOMMENDATIONS
VOLPE, Magistrate Judge.
following recommended disposition has been sent to United
States District Judge James M. Moody Jr. Any party may serve
and file written objections to this recommendation.
Objections should be specific and should include the factual
or legal basis for the objection. If the objection is to a
factual finding, specifically identify that finding and the
evidence that supports your objection. An original and one
copy of your objections must be received in the office of the
United States District Court Clerk no later than fourteen
days from the date of the findings and recommendations. The
copy will be furnished to the opposing party. Failure to file
timely objections may result in waiver of the right to appeal
questions of fact.
are objecting to the recommendation and also desire to submit
new, different, or additional evidence, and to have a hearing
for this purpose before either the District Judge or
Magistrate Judge, you must, at the time you file your written
objections, include the following:
the record made before the Magistrate Judge is inadequate.
the evidence to be proffered at the new hearing (if such a
hearing is granted) was not offered at the hearing before the
details of any testimony desired to be introduced at the new
hearing in the form of an offer of proof, and a copy, or the
original, of any documentary or other non-testimonial
evidence desired to be introduced at the new hearing.
this submission, the District Judge will determine the
necessity for an additional evidentiary hearing. Mail your
objections and "Statement of Necessity" to:
J. Ellis ("Plaintiff") filed this pro se
action on January 12, 2016 (Doc. No. 2). Mr. Ellis is a
"three striker." But because of the potential
imminent danger alleged in his Complaint, on January 13,
2016, I granted Mr. Ellis leave to submit an Amended
Complaint (Doc. No. 3). Mr. Ellis failed to amend his
Complaint so, on February 29, 2016, I denied Plaintiff's
Application to proceed in forma pauperis and ordered
him to pay the $400 filling fee (Doc. No. 9). I advised him
that failure to comply would result in a recommendation that
his claims be dismissed without prejudice ( Id. at
2). Rather than pay the filing fee or amend his Complaint,
Mr. Ellis appealed my ruling. His appeal was dismissed and,
on August 30, 2016, the United States Court of Appeals issued
its Mandate, bringing this matter once again before this
court (Docs. No. 23-24).
after carefully reviewing Mr. Ellis' Complaint (Doc. No.
2) and the procedural history of this matter, I find the law
requires that this case be dismissed without prejudice
pursuant to the "three-strikes" rule.
his status as a "three-striker, " Mr. Ellis may
still proceed in forma pauperis if he is under
imminent danger of serious physical injury. The United States
Court of Appeals for the Eighth Circuit has explained that
this exception applies only if a threat of imminent danger
exists at the time of the filing of the complaint.
SeeMartin v. Shelton,319 F.3d 1048, 1050
(8th Cir. 2003); Ashley v. Dilworth,147 F.3d 715,
717 (8th Cir. 1998). The imminent danger exception focuses on
the risk that the conduct complained ...