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Pitts v. Kelley

United States District Court, E.D. Arkansas, Pine Bluff Division

March 26, 2019

KENNETH RAY PITTS, ADC # 85938 PLAINTIFF
v.
DAVIS KELLEY, JR., et al. DEFENDANTS

          ORDER

          Kristine G. Baker United States District Judge.

         The Court has received the Recommended Disposition submitted by United States Magistrate Judge Beth Deere (Dkt. No. 10). Plaintiff Kenneth Ray Pitts filed timely objections to the Recommended Disposition (Dkt. No. 11). For the reasons discussed below, after a review of the Recommended Disposition, Mr. Pitts' objections, as well as a de novo review of the record, the Court adopts the Recommended Disposition as its findings in all respects.

         The Recommended Disposition recommends dismissing without prejudice Mr. Pitts' complaint for failure to pay the filing fee (Dkt. No. 10, at 2). The Court writes separately to address Mr. Pitts' objections (Dkt. No. 9). Mr. Pitts restates the allegations from his complaint and other filings that defendant Davis Kelley, Jr., Lieutenant, Maximum Security Unit, purportedly grabbed and chocked Mr. Pitts around the neck while Mr. Pitts was in handcuffs (Id., at 1). Mr. Pitts further restates the allegation that Lieutenant Kelley threatened to harm physically and kill Mr. Pitts during this altercation (Id.). Mr. Pitts does not make allegations or attach any evidence relevant to his claim that he should be permitted to proceed in forma pauperis. Mr. Pitts does attach to his objections a copy of a letter from Warden Aundrea Culclager dated August 7, 2018, to Mr. Pitts regarding the grievance he filed against Lieutenant Kelley (Id., at Ex. G). In the letter, Warden Cluclager states that “David Kelley no longer works for the Department of Correction.” (Id.).

         Judge Deere denied Mr. Pitts' motion for leave to proceed in forma pauperis because Mr. Pitts has already accumulated too many “strikes” based on his litigation history[1] (Dkt. No. 7, at 2). Judge Deere informed Mr. Pitts that, absent an allegation of imminent danger of serious physical injury, he will not be allowed to proceed in forma pauperis. 28 U.S.C. § 1915(g). Mr. Pitts has only restated the previous allegations that he made against Lieutenant Kelley. He has not presented evidence to show that he was in imminent danger of serious physical injury when he filed his complaint. For these reasons, Mr. Pitts has not shown that he should receive in forma pauperis status despite his “strikes” because he has failed to show that he was or is in imminent danger of serious physical injury. Therefore, the Court agrees with the Recommended Disposition that Mr. Pitts' complaint should be dismissed without prejudice for failure to pay the filing fee.

         Also, before the Court is Mr. Pitts' appeal of the magistrate judge's decision (Dkt. No. 9). Mr. Pitts appeals Judge Deere's Initial Order for Pro Se Prisoner-Plaintiffs and denial of his motion for leave to proceed in forma pauperis (Dkt. No. 7, at 2). Based on Mr. Pitts' motion, he appears to seek an appeal with the Eighth Circuit Court of Appeals (Dkt. No. 9, at 1-2). However, objections to a “pretrial matter not dispositive of a party's claim or defense, ” such as the Initial Order for Pro Se Prisoner-Plaintiffs in this case, are considered by the district judge. Fed.R.Civ.P. 72(a).

         The Court affirms Judge Deere's Order as it is not clearly erroneous or contrary to law. Id. (“The district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law.”). As stated above, Judge Deere denied Mr. Pitts in forma pauperis status because he accumulated too many strikes (Dkt. No. 7, at 2). Judge Deere informed him that, absent an allegation of imminent danger of serious physical injury, Mr. Pitts will not be allowed to proceed in forma pauperis. 28 U.S.C. § 1915(g). In his appeal, Mr. Pitts restates his allegations against Lieutenant Kelley (Dkt. No. 9, at 1). Mr. Pitts does not present any evidence to support an allegation of imminent danger of serious physical injury or make any additional allegations that would allow him to proceed in forma pauperis. Mr. Pitts' appeal is denied (Dkt. No. 9).

         Mr. Pitts has also filed a motion to appoint counsel (Dkt. No. 12). Because the Court has adopted the Recommended Disposition in this case and dismisses Mr. Pitts' complaint without prejudice, the Court denies Mr. Pitts' motion to appoint counsel (Id.).

         It is therefore ordered that:

1. The Court dismisses without prejudice Mr. Pitts' complaint for failure to pay the filing fee (Dkt. No. 2).
2. The Court denies Mr. Pitts' appeal of the magistrate judge's decision (Dkt. No. 9).
3. The Court denies Mr. Pitts' motion to appoint counsel (Dkt. No. 12).
4. Because the Court dismisses without prejudice Mr. Pitts' complaint, the Court denies as moot Mr. Pitts' pending motion for demand for relief, motion for defenses form of denials, and motion for the elements (Dkt. Nos. 3, 4, 5).

         So ...


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