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Toney v. Dickson

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

December 12, 2018

JAMES LEONARD TONEY PLAINTIFF
v.
CORPORAL HEATH DICKSON, et. al. DEFENDANTS

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HON. JAMES R. MARSCHEWSKI, UNITED STATES MAGISTRATE JUDGE

         This is a civil rights action provisionally filed pursuant to 42 U.S.C. § 1983. Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3)(2011), the Honorable P.K. Holmes, III, Chief United States District Judge, referred Plaintiff's Motion to Appeal in forma pauperis (“IFP”) (ECF No. 11) to the undersigned for the purpose of making a Report and Recommendation.

         I. BACKGROUND

         Plaintiff filed his Complaint on May 22, 2018. (ECF No. 1). Pursuant to the preservice screening requirements of the Prison Litigation Reform Act (“PLRA”), Plaintiff's case was dismissed on July 12, 2018. (ECF No. 7). As Plaintiff had previously filed two lawsuits which were dismissed as frivolous, malicious or failed to state a claim upon which relief may be granted, [1]the Clerk was directed to place a § 1915(g) flag barring Plaintiff from proceeding IFP in future cases unless he is under imminent danger of serious physical injury.

         Plaintiff filed a Notice of Appeal on August 20, 2018. (ECF No. 8). He was directed to file his Application to Appeal IFP by September 10, 2018. Plaintiff filed his Motion to Appeal IFP on December 6, 2018. (ECF No. 11).

         II. ANALYSIS

         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). The three-strikes provision applies to both initial civil complaints and appeals. In re Tyler, 110 F.3d 528, 529 (8th Cir. 1997).

         The three-strikes provision applies to Plaintiff. As he is a “three-striker, ” and has not alleged that he is in imminent danger of physical harm, he is not eligible for IFP status on this appeal.

         III. CONCLUSION

         Accordingly, I recommend that Plaintiff's Motion to Appeal IFP (ECF No. 11) be DENIED.

         The parties have fourteen days from receipt of the Report and Recommendation in which to file written objections pursuant to 28 U.S.C. ยง 636(b)(1). The failure to file timely objections may result in waiver of the right to appeal questions of fact. The parties are reminded that objections ...


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