United States District Court, E.D. Arkansas, Eastern Division
ERIC C. BURGIE ADC #120956 PLAINTIFF
WENDY KELLEY, et al. DEFENDANTS
PROPOSED FINDINGS AND RECOMMENDATION
following proposed Findings and Recommendation have been sent
to Chief United States District Judge Brian S. Miller. You
may file written objections to all or part of this
Recommendation. If you do so, those objections must: (1)
specifically explain the factual and/or legal basis for your
objection, and (2) be received by the Clerk of this Court
within fourteen (14) days of this Recommendation. By not
objecting, you may waive the right to appeal questions of
Eric C. Burgie filed a complaint pursuant to 42 U.S.C. §
1983 and an application to proceed in forma pauperis
on January 8, 2018. Doc. Nos. 1 & 2. In addition to the
complaint, Burgie filed a motion for a preliminary
injunction. Doc. No. 3. This recommended disposition concerns
Burgie's application to proceed in forma
pauperis and his motion for a preliminary injunction.
is an inmate at the East Arkansas Regional Unit
(“EARU”) in the Arkansas Department of Correction
(“ADC”) and a “three-striker” under
the three-strikes provision of the Prison Litigation Reform
Act (“PLRA”). The PLRA's three-strikes
provision states that a prisoner cannot proceed in forma
pauperis in a civil action if:
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) (emphasis added). The U.S. Court of
Appeals for the Eighth Circuit has explicitly upheld the
constitutionality of the three-strikes provision. See
Higgins v. Carpenter, 258 F.3d 797 (8th Cir. 2001).
Burgie received strikes in the following cases: Burgie v.
Norris, et al., No. 5:05-cv-00317-SWW (E.D. Ark. 2006);
Burgie et al. v. Hannah et al., No. 4:12-cv-00051-J
(E.D. Ark. 2012); Burgie v. McDaniel, et al., No.
4:14-cv-00181-KGB (E.D. Ark. 2014); and Burgie v. Harris,
et al., No. 5:06-cv-00258-BRW (E.D. Ark. 2008).
three-striker, Burgie must show that he was in imminent
danger of serious physical injury at the time he filed the
complaint to be allowed to proceed in forma
pauperis. 28 U.S.C. § 1915(g); Ashley v.
Dilworth, 147 F.3d 715, 717 (8th Cir. 1998). The Eighth
Circuit has clarified that the imminent danger exception
applies only when there is a genuine risk of an
“ongoing serious physical injury.” Martin v.
Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). Burgie
alleges that he is in imminent danger of serious physical
injury because he believes he has been exposed to asbestos or
other carcinogens contained in plywood placed over broken
windows in his barracks. Burgie was instructed to file an
amended complaint explaining why he believes he has been
exposed to asbestos or any other dangerous chemical, how long
he has been exposed to the same, and whether the Defendants
were aware of such exposure. Doc. No. 4. Burgie was also
instructed to describe what medical treatment he has sought
and any diagnosis he has received. Id.
filed an amended complaint on March 15, 2018 (Doc. No. 13).
He maintains that on December 12, 2017, cracked and broken
glass in one barracks was removed and replaced with plywood
which was then broken by inmates around the time he filed
this complaint in January 2018. Doc. No. 13 at 7-8. Burgie
Id. at 7. Burgie claims that since the plywood was
broken in January, he has been coughing, having difficulty
breathing, experiencing the feeling of something in his lungs
or chest, irritation, and at different times high fevers.
Id. at 8. Burgie states that he sought medical
treatment, was tested for the flu twice, and given allergy
medications. Id. at 13. Burgie generally asserts
that the plywood continues to be broken but does not detail
how often the boards are broken and replaced. Id. at
12. Burgie also asserts that he was retaliated against for
filing this action but provides no details to support that
allegation. Id. at 11.
reviewed Burgie's amended complaint, the Court finds that
Burgie fails to allege sufficient facts to show he is
imminent danger of serious physical injury. Moreover, Burgie
fails to allege sufficient facts to support a claim for
relief. An action fails to state a claim upon which relief
can be granted if it does not plead sufficient facts to
“raise a right to relief above the speculative
level” or “to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). Although the Court
must give a pro se complaint the benefit of a
liberal construction, Estelle v. Gamble, 429 U.S.
97, 106 (1976), the Court need not weigh all factual
allegations in favor of the plaintiff if the facts alleged
are clearly baseless. Denton v. Hernandez, 504 U.S.
25, 32-33 (1992) (explaining that clearly baseless facts
include those that are fanciful, fantastic, and delusional).
See also Glick v. Henderson, 855 F.2d 536, 539 (8th
Cir. 1988) (affirming dismissal of complaint based on
unsubstantiated fears and ignorance).
bases his belief that he is being exposed to dangerous
chemicals on a California warning label printed on the
plywood. Burgie also states it is well-known that plywood
contains asbestos but provides no basis for this
assertion. Even if the plywood contains some
chemicals known to cause cancer, Burgie provides no facts to
support his belief that the occasional breaking of it is
sufficient to cause such chemicals to become airborne in
significant enough amounts to cause illness. Because
Burgie's complaint is based on speculation, it should be
dismissed without prejudice for failure to state a claim. For
the same reasons, granting injunctive relief is not
appropriate. Accordingly, Burgie's motion for a
preliminary injunction should be denied.
THEREFORE RECOMMENDED THAT:
1. Burgie's motion for leave to proceed in forma
pauperis (Doc. ...