United States District Court, W.D. Arkansas, Hot Springs Division
MAGISTRATE JUDGE'S REPORT AND
JAMES R. MARSCHEWSKI, UNITED STATES MAGISTRATE JUDGE
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.
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, 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.
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).
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). The
three-strikes provision applies to both initial civil
complaints and appeals. In re Tyler, 110 F.3d 528,
529 (8th Cir. 1997).
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.
I recommend that Plaintiff's Motion to Appeal IFP (ECF
No. 11) be DENIED.
parties have fourteen days from receipt of the Report and
Recommendation in which to file written objections pursuant
to 28 U.S.C. § 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