United States District Court, W.D. Arkansas, El Dorado Division
O. Hickey, Chief United States District Judge.
Terrick Nooner filed this pro se civil rights action
under 42 U.S.C. § 1983. Plaintiff has submitted a motion
to proceed in forma pauperis (“IFP”). By
Order (ECF No. 3) entered on April 8, 2019, Plaintiff was
advised that it appeared he was not eligible for IFP status.
He was given until April 29, 2019, to submit information
indicating why he believed he was eligible for IFP status.
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.
case at bar, the three strikes rule applies to Plaintiff. 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 District Court Eastern
District of Arkansas, et al., No. 4:14-cv-00664 (E.D.
Ark. Feb. 18, 2015), the Court discussed Plaintiff'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.
Id., slip op. at 1. See also Nooner v. Fed.
Bureau of Investigation, No. 4:99-cv-00544, slip op. at
3 (E.D. Ark. Sept. 20, 1999) (strike for failure to state a
claim); Nooner v. Dickey, No. 5:01-cv-00379, slip
op. at 3 (E.D. Ark. Jan. 14, 2002) (strike for failure to
state a claim); Nooner v. Camp, No. 5:98-cv-00345,
slip op. at 1-2 (E.D. Ark. Aug. 20, 1998) (dismissed based on
three strikes rule). Thus, it is clear that Plaintiff
accumulated more than three strikes prior to filing the
instant lawsuit on April 8, 2019. Additionally, Plaintiff has
had one case dismissed in this district based on his three
strike history. See Nooner v. E. Dist. of Ark., et
al., No. 1:19-cv-01005, slip op. at 2-3 (W.D. Ark. Apr.
Plaintiff 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 has asserted claims against a multitude of public
officials and/or public servants, including nearly all the
District and Magistrate Judges in both this district and the
Eastern District of Arkansas. Plaintiff maintains he has been
falsely imprisoned since 1993 pursuant to fraudulent criminal
charges. He alleges violations of his Fifth, Eighth, Ninth,
and Fourteenth Amendment rights. However, none of
Plaintiff's allegations suggest he is in imminent danger.
Accordingly, Plaintiff has failed to satisfy the imminent
danger exception to the three strikes rule.
these reasons, Plaintiff's IFP motion (ECF No. 2) should
be and hereby is DENIED. Accordingly, this
case is DISMISSED WITHOUT PREJUDICE pursuant
to 28 U.S.C. § 1915(g). The Clerk is directed to place a
section 1915(g) case flag on this case. All other pending
motions are DENIED as moot.
ten days of this Order, upon payment of the full $400 filing
fee, Plaintiff may file a motion to reopen the case.
Plaintiff should note the case number on the payment and the
Court certifies, pursuant to 28 U.S.C. §1915(a)(3), that
an IFP appeal would not be taken in good faith.