United States District Court, W.D. Arkansas, Hot Springs Division
MAGISTRATE JUDGE'S REPORT AND
JAMES R. MARSCHEWSKI, UNITED STATES MAGISTRATE JUDGE
proceeds in this matter pro se pursuant to 42 U.S.C.
§ 1983. Pursuant to the provisions of 28 U.S.C. §
636(b)(1) and (3)(2011), the Honorable Susan O. Hickey,
United States District Judge, referred this case to the
undersigned for the purpose of making a Report and
complaint was provisionally filed subject to a later
determination of whether his in forma pauperis (IFP)
application should be granted. The question of
Plaintiff's IFP status is currently before the Court.
filed his Complaint on September 6, 2018. (ECF No. 1).
Plaintiff is currently incarcerated in the Arkansas
Department of Correction Ouachita River Unit. (Id.
at 2). Plaintiff alleges Defendants Jason Kelley and Dr.
Nannette Vowell, both identified as employees of Correct Care
Solutions, violated his federal constitutional rights. He
additionally alleges they violated his rights under the
Americans with Disabilities Act and the Federal Audio Book
program. (Id. at 5).
alleges he had cataract surgery on December 26, 2017, at the
Jones Eye Institute. (Id. at 5). Since the surgery,
he has not been able to read. Plaintiff alleges he also
suffers from diabetes, macular degeneration, dyslexia,
Alzheimer's, and at some point prior had a stroke.
(Id. at 6). At a post-surgery follow-up appointment
he alleges he discussed a federal free audiobook program with
his eye surgeon, Dr. Sallam, who signed his application for
the program. (Id. 6). As his Exhibit A, Plaintiff
attached an application for free library services addressed
to the Arkansas State Library, Services for the Blind and
Physically Handicapped. (ECF No. 1-1).
alleges Defendant Vowell denied his application for the
audiobook program. Plaintiff then wrote to Defendant Kelley,
who “would do nothing.” (Id. at 8-10).
seeks compensatory and punitive damages. He also seeks
declaratory and injunctive relief, a jury trial, costs, and
prospective relief. (Id. at 16).
of the Prison Litigation Reform Act (PLRA), Pub. L. No.
104-134, 110 Stat. 1321, signed into law on April 26, 1996,
section1915, which governs proceedings filed in forma
pauperis, was amended in an effort to address concerns about,
and reduce the number of, frivolous prisoner initiated
lawsuits. 28 U.S.C. § 1915. Prior to the PLRA's
amendments to § 1915, a prisoner who attained in forma
pauperis 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).
PLRA also added subsection 1915(g) which limits the ability
of a prisoner, who has filed at least three claims that have
been dismissed as frivolous, malicious, or failing to state a
claim, to obtain in forma pauperis status. Specifically,
§ 1915(g) provides that:
In no event shall a prisoner bring a civil action . . . under
this section if the prisoner has, on three or more prior
occasions, while incarcerated or detained in any facility,
brought an action . . . 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
28 U.S.C. § 1915(g). This provision has commonly become
known as the "three strikes rule" or the
"three strikes provision" and has withstood
constitutional challenges. See e.g. Medberry v.
Butler, 185 F.3d 1189, 1192 (11th Cir. 1999).