United States District Court, W.D. Arkansas, El Dorado Division
O. HICKEY CHIEF UNITED STATES DISTRICT JUDGE
Nooner (“Nooner”), currently an inmate of the
Varner Super Max Unit of the Arkansas Department of
Correction, has submitted for filing in this district a
pro se civil rights action under 42 U.S.C. §
1983. Nooner has also submitted a motion to proceed in
forma pauperis (IFP).
statute, 28 U.S.C. § 1915, contains what has come to be
known as the “three strikes rule, ” 28 U.S.C.
§ 1915(g). The three strikes rule provides:
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.
28 U.S.C. 1915(g).
case, the three strikes rule applies to Nooner. He has at
least three previous actions that qualify as strikes against
him pursuant to 28 U.S.C. §1915(g). In Nooner v.
United States Court Eastern District of Arkansas, et
al., No. 4:14-cv-00664 (E.D. Ark. Feb. 18, 2015), the
Court discussed Nooner's case filing history and
dismissed the case based on the three strikes
rule. The Court stated:
Mr. Nooner has well over three strikes. In November 2002,
Judge Susan Webber Wright counted 33
conditions-of-confinement cases Mr. Nooner had filed in this
district, 28 of which have been dismissed: three for failure
to state a claim; one as frivolous; and nine based on Mr.
Nooner's prior three-strike history. See Dkt.
Id., slip op. at 1. See also Nooner v. Federal
Bureau of Investigation, No. 4:99-cv-00544, slip op. at
3 (E.D. Ark. Sept. 20, 1999) (strike-failure to state a
claim); Nooner v. Dickey, No. 5:01-cv-00379, slip
op. at 3 (E.D. Ark. Jan. 14, 2002) (adopting report and
recommendation: strike-failure to state a claim); Nooner
v. Camp, No. 5:98-cv-00345, slip op. 1-2 (E.D. Ark. Aug.
20, 1998) (dismissed based on three strikes rule). Thus,
Nooner had accumulated more than three strikes prior to
filing the instant lawsuit on February 21, 2019.
Nooner may be allowed to proceed IFP if he falls under the
“imminent danger” exception to the three strikes
rule. See 28 U.S.C. §1915(g) (providing that
three strikers should be granted permission to proceed IFP if
they are “under imminent danger of serious physical
injury”). The Eighth Circuit has explained that the
imminent danger exception to section 1915(g) applies only if
the prisoner alleges that he is in imminent danger “at
the time of filing” and thus “[a]llegations that
the prisoner has faced imminent danger in the past are
insufficient.” Ashley v. Dilworth, 147 F.3d
715, 717 (8th Cir. 1998).
has not alleged that, at the time this lawsuit was filed, he
was in any danger at all, much less imminent danger. Instead,
he asserts claims based on the alleged failure of various
officials to properly perform their duties; the alleged
failure of officials to conduct a sexual misconduct
investigation; the alleged failure of officials to follow
regulations; alleged fraudulent conduct on the part of
Defendants; and a number of other allegations that appear to
be nonsensical. Accordingly, Nooner has failed to satisfy the
imminent danger exception to the three strikes rule.
these reasons, Nooner's IFP motion (ECF No. 2) is
DENIED. This case is DISMISSED
WITHOUT PREJUDICE pursuant to 28 U.S.C. §
1915(g). The Clerk is directed to place a § 1915(g) case
flag on this case.
ten days of this Order, upon payment of the full $400 filing
fee, Nooner may file a motion to reopen the case. Nooner
should note the case number on the payment and the motion.
Court certifies, pursuant to 28 U.S.C. §1915(a)(3), that
an IFP appeal would not be taken in good faith.