United States District Court, W.D. Arkansas, Hot Springs Division
O. Hickey United States District Judge
the Court is the Report and Recommendation filed September
24, 2018, by the Honorable James R. Marschewski, United
States Magistrate Judge for the Western District of Arkansas.
ECF No. 5. Plaintiff has filed timely objections. ECF No. 6.
The Court finds this matter ripe for consideration.
instant Report and Recommendation, Judge Marschewski
recommends that Plaintiff's application to proceed in
forma pauperis (“IFP”) be denied
pursuant to 28 U.S.C. § 1915(g) and that the Court allow
him fifteen days to pay the required filing fee. Section
1915(g) 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.
Marschewski found that Plaintiff had “at least three
previous actions that qualify as strikes against him under
section 1915(g)” and that he had not alleged that he
was under imminent danger of serious physical injury. ECF No.
5, p. 3. Accordingly, Judge Marschewski found that Plaintiff
is not eligible to proceed IFP.
objections, Plaintiff states that he did not request to
proceed IFP and, regardless, asserts that 28 U.S.C. §
1915(b)(4) constitutes an exception to 28 U.S.C. §
1915(g) that entitles him to proceed without prepayment of
the filing fee. Section 1915(b)(4) states that “[i]n no
event shall a prisoner be prohibited from bringing a civil
action or appealing a civil or criminal judgment for the
reason that the prisoner has no assets and no means by which
to pay the initial partial filing fee.” Plaintiff
claims that Judge Marschewski failed to consider this
“exception.” Accordingly, Plaintiff asserts that
he should not be required to prepay the filing fee and that
his case should not be dismissed for failure to pay that fee.
consideration, the Court finds Plaintiff's objections
unconvincing. Judge Marschewski found that Plaintiff has at
least three strikes as contemplated by section 1915(g) and
has failed to allege that he is in imminent danger of serious
physical harm. Plaintiff does not challenge these findings.
Accordingly, under section 1915(g), Plaintiff cannot proceed
IFP and he must pay the required filing fee.
to the extent Plaintiff asserts that 28 U.S.C. §
1915(b)(4) constitutes an “exception” to section
1915(g), he is incorrect. Although section 1915(b)(4) states,
in relevant part, that a prisoner cannot be barred from
bringing a civil action because he has no assets or means to
pay “the initial partial filing fee, ” that
section applies where a prisoner does not have three prior
strikes. See Lyon v. Krol, 127 F.3d 763, 764 (8th
Cir. 1997) (explaining that 28 U.S.C. § 1915
differentiates between prisoners without three strikes and
prisoners with three strikes as to method of paying filing
fee). Judge Marschewski, however, found that Plaintiff has
three prior strikes. Accordingly, section 1915(b)(4) is
inapplicable under the present circumstances.
foregoing reasons, the Court hereby ADOPTS
Judge Marschewski's Report and Recommendation (ECF No. 5)
in toto. Accordingly, Plaintiff's application to
proceed in forma pauperis (ECF No. 2) should be and
hereby is DENIED. Plaintiff shall have
fifteen (15) days from the date of this order in which to
tender to the Clerk of Court the proper filing fee. If
Plaintiff fails to pay the proper filing fee, his case will
be dismissed without prejudice to his right to re-file with
the appropriate filing fee. Furthermore, the Clerk of Court
is directed to provisionally file any future action in which
Plaintiff seeks to proceed IFP. The appropriate magistrate
judge shall then review the action and, if it is a civil
action rather than a criminal or habeas action and if
Plaintiff has not asserted a valid claim that he is under
imminent danger of serious physical injury, the magistrate
judge shall recommend that IFP status be denied.
IS SO ORDERED.