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Heffernan v. Kelley

United States District Court, W.D. Arkansas, Hot Springs Division

September 24, 2018

ROBERT HEFFERNAN PLAINTIFF
v.
JASON M. KELLY and DR. NANNETTE L. VOWELL DEFENDANTS

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HON. JAMES R. MARSCHEWSKI, UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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 Recommendation.

         Plaintiff's 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.

         I. BACKGROUND

         Plaintiff 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).

         Plaintiff 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).

         Plaintiff alleges Defendant Vowell denied his application for the audiobook program. Plaintiff then wrote to Defendant Kelley, who “would do nothing.” (Id. at 8-10).

         Plaintiff seeks compensatory and punitive damages. He also seeks declaratory and injunctive relief, a jury trial, costs, and prospective relief. (Id. at 16).

         II. LEGAL STANDARD

         As part 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).

         The 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 physical injury.

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).

         III. ...


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