United States District Court, W.D. Arkansas, Hot Springs Division
JAMES L. TONEY PLAINTIFF
CORPORAL HEATH DICKSON, Malvern Police Department “MPD”; SERGEANT KEITH PRINCE, MPD; ASSISTANT CHIEF JIM BAILEY, MPD; and CHIEF OF POLICE DONNIE TABER, MPD DEFENDANTS
HOLMES, III, CHIEF U.S. DISTRICT JUDGE
L. Toney, an inmate in the Hot Spring County Jail in Malvern,
Arkansas, brings this pro se civil rights action
pursuant to 42 U.S.C. § 1983. Before the Court is the
issue of Plaintiff's status as a pauper and the number of
his previous 1983 lawsuits that have been dismissed for
failure to state a claim.
submitted his Complaint and application to proceed in
forma pauperis (“IFP”) for filing on
September 25, 2017. (ECF Nos. 1, 2). That same day the Court
ordered Plaintiff to complete page 3 of his Complaint by
October 13, 2017. (ECF No. 3). Plaintiff failed to do so and
an order to show cause was issued on October 27, 2017. (ECF
No. 6). Plaintiff responded and submitted page 3 of his
Complaint on November 2, 2017. Plaintiff's IFP
application was granted on November 2, 2017. (ECF No. 8).
Recently, the Court discovered that prior to filing this
lawsuit Plaintiff previously filed at least three § 1983
actions which were dismissed for failure to state a claim
upon which relief may be granted.
of the Prison Litigation Reform Act (“PLRA”), 28
U.S.C. §1915 which governs proceedings filed IFP, was
amended in an effort to reduce the number of frivolous
prisoner initiated lawsuits. Prior to the PLRA's
amendments to §1915, a prisoner who attained IFP status
was exempted from paying court fees. After the enactment of
the PLRA, prisoners granted IFP status are required to pay
the filing fee albeit in installments. 28 U.S.C.
§1915(b). The PLRA provides that:
In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under this section
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); see also Higgins v.
Carpenter, 258 F.3d 797, 800-801 (8th Cir.
2001) (holding that §1915(g) is constitutional). This
provision has commonly become known as the “three
strikes rule” or the “three strikes
case, the three strikes rule applies to Plaintiff. He has at
least three previous actions that qualify as strikes against
him under 28 U.S.C. §1915(g). Toney, et al. v.
Norris, et al., Civil No. 5:95-cv-00021 (E.D.
Ark.)(Report and Recommendation entered on January 30, 1995,
recommending dismissal for failure to state an actionable
claim. Adopted by Order and Judgment entered on February 14,
1995. Dismissal affirmed on appeal May 25,
1995); Toney v. Hunter, et al,
Civil No. 4:02-cv-00286 (E.D. Ark.)(Report and Recommendation
enter on June 5, 2002, recommending dismissal for failure to
state a claim and that the dismissal count as a strike.
Adopted by Order and Judgment entered July 2, 2002, stating
among other things, that the dismissal counts as a strike.
Appeal dismissed for failure to prosecute on November 10,
2002); Toney v. Golden, et al., Civil No.
6:02-cv-06125 (W.D. Ark.)(Report and Recommendation entered
on August 9, 2002, recommending dismissal on the grounds the
claims are frivolous and fail to state claims upon which
relief may be granted. Adopted by order entered August 27,
2002. No appeal was taken). Therefore, Plaintiff has
accumulated three strikes prior to filing the instant lawsuit
on September 25, 2017.
Plaintiff may be allowed to proceed IFP if he falls under the
“imminent danger” exception to the three strikes
rule. See 28 U.S.C. §1915(g) (providing that
three strikers should be granted permission to proceed IFP if
they are “under imminent danger of serious physical
injury”). The Eighth Circuit has explained that the
imminent danger exception to section 1915(g) applies only if
the prisoner alleges that he is in imminent danger “at
the time of filing” and that “[a]llegations that
the prisoner has faced imminent danger in the past are
insufficient.” Ashley v. Dilworth, 147 F.3d
715, 717 (8th Cir. 1998). Plaintiff has not alleged that he
is in any danger, much less imminent danger, at the time he
filed this suit. Instead, he has alleged claims for
“harassment, illegal profiling, illegal
search…entrapment, excessive force.” (ECF No.
1). Thus, he has failed to satisfy the imminent danger
exception to the three strikes rule.
foregoing reasons, Plaintiff's IFP status is hereby
revoked. Plaintiff is directed to pay the full
$350.00 filing fee by May 29, 2018. If Plaintiff
fails to pay the full filing fee by May 29, 2018, this case
shall be dismissed for failure to prosecute.
Even if the Complaint is dismissed, Plaintiff will still be
assessed the full filing fee because the PLRA makes prisoners
responsible for their filing fees from the moment a complaint
is filed. In re Tyler, 110 F.3d 1032, 1036 (8th Cir.
should be noted that, in the event that Plaintiff tenders the
filing fee, he will also be responsible for other costs
associated with this action, such as costs of service and
fees for the issuance of any requested subpoenas. In
addition, Plaintiff is precluded from filing any future civil
action IFP unless he is under imminent danger of serious
is advised that he is required to immediately inform the
Court of any change of address. If Plaintiff is
transferred to another jail or prison or released, he shall
have 30 days from the date of transfer or release in which to
notify the Court of his new address. Plaintiff shall
submit a change of address on a separate piece of paper
entitled "Notice to the Court of Change of Address"
and not include any motions or otherwise request relief in
this document. The notice shall contain only information
pertaining to the address change. Failure to inform
the Court of an address change shall result in this case
being subject to dismissal.
Court CERTIFIES, pursuant to 28 U.S.C. §1915(a)(3), that
an IFP appeal would not be taken in good faith.