United States District Court, E.D. Arkansas, Eastern Division
FREDERICK PENNINGTON JR. ADC #071305 PLAINTIFF
PATRICK DRUMOND, 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
Frederick Pennington Jr. filed a complaint pursuant to 42
U.S.C. § 1983 and an application to proceed in forma
pauperis on March 12, 2018 (Doc. Nos. 1 & 2).
Pennington has also filed a motion for preliminary injunction
and temporary restraining order (Doc. No. 8). This
recommended disposition concerns Pennington's application
to proceed in forma pauperis, his complaint, and his
motion for a preliminary injunction and temporary restraining
is an inmate at the East Arkansas Regional Unit 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
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). The
following cases filed by Pennington are the three most recent
cases dismissed for failure to state a claim: Pennington
v. Harmon, et al., No. 5:01-cv-00034-BRW (E.D. Ark.
2001); Pennington v. Pryor, et al., No.
4:00-cv-00748-BRW (E.D. Ark. 2000); and Pennington v.
Brownlee, et al., No. 5:99-cv-00184-SWW (E.D. Ark.
three-striker, Pennington must show that he was in imminent
danger of serious physical injury at the time he filed the
complaint in order 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). Pennington alleges he is in imminent
danger of serious physical injury because he was diagnosed
with hepatitis C and has not received a biopsy. Doc. No. 2.
Pennington was instructed to file an amended complaint
describing why he believes he is not receiving appropriate
treatment for hepatitis C and how that puts him in imminent
danger of serious physical injury. Doc. No. 5.
filed a motion to amend complaint and a supporting brief on
March 15, 2018 (Doc. Nos. 6 & 7). On March 28, 2018, the
Court entered an order granting Pennington's motion to
amend complaint and treating the supporting brief as
Pennington's amended complaint (Doc. No. 10). Pennington
was instructed to notify the Court within 14 days if he did
not intend his brief to be treated as his amended complaint.
Pennington filed a notice on April 11, 2018, stating that he
agreed that his brief should constitute his amended complaint
(Doc. No. 12).
reviewed Pennington's amended complaint (Doc. No. 11),
the Court finds that Pennington fails to allege sufficient
facts to show he is in imminent danger of serious physical
injury. Moreover, Pennington 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).
believes he is in need of hepatitis C treatment. He explains
that he was previously treated and cured of hepatitis C
following a lawsuit he filed in 2006. Doc. No. 11 at 1-2.
Pennington states that doctors and nurses have told him he
has hepatitis C. Id. at 3. He claims he believes he
is in need of treatment again because the devil made him
drink water contaminated with fecal matter. Id. at
3-4. Pennington further states that Dr. Drummond told him he
needed treatment again but he refused, and Dr. Drummond then
said, “Ok. It's stable.” Id. at 4.
Pennington also alleges that he was told in response to a
grievance that he did not meet the criteria for hepatitis C
treatment at that time. Id. at 6.
also claims that he was attacked by the devil who made him
drop his soap in a sink eight times after HIV positive
inmates had spit into the sink. Id. at 4-5.
Pennington alleges that the spit on the soap made his hands
break out and bleed. Id. Pennington believes he has
a staph infection and claims Dr. Drummond and Dr. Campbell
will not prescribe oral antibiotics or Truvada but instead
prescribed Triamcinolone 0.1% cream, Absorbase ointment,
Bicintracin [sic] ointment, and an antibiotic ointment.
Id. at 5-8 & 14-16.
remainder of Pennington's amended complaint concerns
potential financial resources that could be used to pay his
filing fee. Id. at 8-13.
does not describe sufficient facts to support his claims. He
does not describe any symptoms (other than some gas) that
lead him to believe he has an active hepatitis C infection in
need of treatment. Pennington does not explain how he knows
certain inmates are HIV positive, or why he believes that he
would acquire a staph infection from handling soap with their
spit on it. He does not claim ...