United States District Court, E.D. Arkansas, Pine Bluff Division
Kristine G. Baker United States District Judge.
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.
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.).
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 (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.
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).
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.
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.).
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,