United States District Court, E.D. Arkansas, Northern Division
OPINION AND ORDER
LEON HOLMES UNITED STATES DISTRICT JUDGE.
Abdulaziz, who is also known as Frank Askew, Jr., is a
prisoner in the North Central Unit of the Arkansas Department
of Correction. He has filed a pro se § 1983
substituted complaint and two applications to proceed in
Prison Litigation Reform Act provides that a prisoner cannot
proceed in forma pauperis if he “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. §
to filing this lawsuit on April 27, 2016, Abdulaziz filed at
least four cases that were dismissed for failing to state a
claim upon which relief may be granted. See Askew v.
Tucker; 5:93CV00522; Askew v. Doe; 4:93CV00831;
Askew v. Casey; 5:94CV00776; Askew v.
Norris; 2:09CV00165. Nevertheless, Abdulaziz may proceed
in forma pauperis if he falls under the
“imminent danger” exception to the three strikes
rule. See 28 U.S.C. § 1915(g). To satisfy that
exception, a prisoner must plead facts suggesting that he was
in imminent danger of serious physical injury “at
the time of filing” the complaint. Ashley v.
Dilworth, 147 F.3d 715, 717 (8th Cir. 1998) (emphasis in
the original). “Allegations that the prisoner has faced
imminent danger in the past are insufficient to trigger this
exception to § 1915(g) . . . .” Id.
alleges that, six to seven months before he filed this
lawsuit, defendants failed to protect him from white
supremacist inmates who sexually assaulted him and threatened
him with a knife. Document #7 at 5. However, Abdulaziz
concedes that, sometime prior to filing this
lawsuit, he was transferred to isolation and away from
those inmates. Id. at 7. Because Abdulaziz is no
longer in imminent danger of being harmed by those prisoners,
he cannot proceed in forma pauperis on this failure
to protect claim.
contends that defendants have refused to process his
grievances, seized his personal property, destroyed his legal
documents, withheld his mail, racially discriminated against
him, and convicted him of retaliatory disciplinary charges.
Id. at 5. None of those claims place Abdulaziz in
imminent danger of serious physical injury. Thus, he must pay
the filing fee in full if he wishes to pursue them.
alleges that, approximately one month before he began this
action, he found mercury in his breakfast tray. Id.
at 6. Allegedly, defendants did not take Abdulaziz's
complaints of food contamination seriously. Id.
Thus, to protect himself, Abdulaziz began a self-imposed
“hunger and medication strike, ” which has
resulted in him losing eighteen pounds and having
“unrecorded” seizures. Id. at 7.
Abdulaziz, who claims to be a member of ISIS, Document #9 at
4, also threatens to start a riot, attack prisoners and
guards, or hurt himself if he is not transferred out of the
North Central Unit. Document #7 at 7.
a prisoner or guard put mercury in Abdulaziz's food, a
single incident of food contamination does not rise to the
level of a constitutional violation, and while Abdulaziz
argues that he would have died if he had ingested the
mercury, allegations of past imminent danger are insufficient
to overcome 28 U.S.C. § 1915(g). See Wishon v.
Gammon, 978 F.2d 446, 449 (8th Cir. 1992). Here,
Abdulaziz is deliberately attempting to place
himself in imminent danger by refusing to eat or take his
medication. Allowing a prisoner to circumvent the
three-strikes provision in such a fashion would clearly be
contrary to the purpose of the Prison Litigation Reform Act.
Abdulziz alleges that defendant Sergeant Jeffery Baumgardner
called him a “smartass nigger, ” told him to
“watch what he eats, ” and declared that
“if it was up to him, he would take all Muslims in
prison and writ writers and send them out to be shot the hell
up.” Document #7 at 8. Verbal insults and threats,
although morally reprehensible, generally do not rise to the
level of a constitutional violation. See McDowell v.
Jones, 990 F.2d 433, 434 (8th Cir. 1993); Hopson v.
Fredericksen, 961 F.2d 1374, 1378 (8th Cir. 1992).
Verbal threats, however, may be enough when the threat rises
to the level of a “wanton act of cruelty, ” so
that the inmate is in fear of “instant and unexpected
death at the whim of his allegedly bigoted custodians.”
Burton v. Livingston, 791 F.2d 97, 99-100 (8th Cir.
1986) (finding a viable constitutional claim when a prison
guard “pointed a lethal weapon at the prisoner, cocked
it, and threatened him with instant death”).
Furthermore, Baumgardner allegedly said what he thought
should be done to Abdulaziz, and not what he
actually intended to do. Document #7 at 8. Baumgardner's
alleged threats, although offensive and certainly
unprofessional, do not satisfy the imminent danger to the
three strikes rule.
THEREFORE ORDERED THAT:
Abdulaziz's applications to proceed in forma
pauperis are DENIED pursuant to 28 U.S.C. §
1915(g). Documents #1 and #6.
case is dismissed without prejudice.
Abdulaziz wishes to pursue any of the claims raised in his
substituted complaint he must, within thirty days of the
entry of this order, file a motion to reopen and pay the $350
filing fee in full.
Court certifies, pursuant to 28 U.S.C. § 1915(a)(3),
that an in forma pauperis appeal from this order of
dismissal and the ...