United States District Court, E.D. Arkansas, Central Division
KRISTINE G. BAKER UNITED STATES DISTRICT JUDGE.
Leodis Randle was incarcerated at the Houston Federal
Detention Center when he filed a pro se complaint on
February 12, 2019 (Dkt. No. 1). Mr. Randle did not pay the
$400.00 filing fee or file an application to proceed in
forma pauperis at the time he filed his complaint. On
February 19, 2019, Mr. Randle filed a notice of change of
address indicating that he was no longer in custody (Doc. No.
2). Then, on February 27, 2019, Mr. Randle filed a second
notice of change of address indicating that he is in custody
in the Pulaski County Detention Center (Dkt. No. 3).
Prison Litigation Reform Act (“PLRA”) provides
that a prisoner cannot proceed in forma pauperis
“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). At this
time, the PLRA applies to Mr. Randle's claims as he
remains in custody. While the Court of Appeals for the Eighth
Circuit has not addressed the issue, courts in other circuits
have held that the three-strikes rule applies to lawsuits
filed by a prisoner, even if he is later released. See
Gibson v. City of New York, 692 F.3d 198, 201
(2d Cir. 2012) (“[T]he relevant time at which a person
must be “a prisoner” . . . is “the moment
the plaintiff files his complaint.”); Johnson v.
Allegheny, 669 Fed. App'x 74, 75 n.1 (3d Cir. 2011)
(holding that the PLRA applies notwithstanding post-suit
release); Torns v. Miss. Dept. Corrs., 421 Fed.
App'x 316, 317 (5th Cir. 2010) (holding that the
plaintiff's release “did not entitle him to proceed
IFP on an action that he had brought while he was a prisoner
subject to the three-strikes bar.”); Harrison v.
State, No. 14-0811-BAJ-RLB, 2015 WL 6675570 (M.D. La.
Oct. 30, 2015).
to filing this lawsuit on February 12, 2019, Mr. Randle filed
at least three actions that were dismissed for failing to
state a claim upon which relief may be granted. See
Randle v. Peters, et al., 4:14-CV-280-BRW; Randle v.
Baker, et al., 4:14-CV-357-JLH; Randle v. Arkansas,
et al., 4:17-CV-291-BSM. Nevertheless, Mr. Randle may
proceed in forma pauperis 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 in
forma pauperis if they are “under imminent danger
of serious physical injury”); Ashley v.
Dilworth, 147 F.3d 715, 717 (8th Cir. 1998) (explaining
that the exception applies only if the prisoner is in
imminent danger “at the time of filing” and that
“[a]llegations that the prisoner has faced imminent
danger in the past are insufficient”).
Randle sued the Doe defendants, including the Federal
Courthouse, Court Policy, and the Justice System (Dkt. No.
1). He alleges that earlier cases he filed were wrongfully
dismissed under § 1915(g)'s three-strikes provision
because he was in imminent danger of serious physical injury
at the time he filed the complaints; he challenges the policy
that was behind the dismissal of his cases (Id., at
3, 4, 6, 7, 9). He also alleges that he will be in imminent
danger again upon his return to the Pulaski County Detention
Center following treatment in an outside facility
(Id., at 3). Based on the allegations in Mr.
Randle's complaint, he was not in imminent danger at the
time he filed his complaint; instead, he fears future danger.
Accordingly, the imminent danger exception does not apply.
Dilworth, 147 F.3d at 717. This case will be
dismissed due to Mr. Randle's failure to pay the filing
fee. Mr. Randle will have 30 days to reopen this case by
paying the $400.00 filing fee in full.
therefore ordered that:
Randle's complaint is dismissed without prejudice (Dkt.
Randle has 30 days from the date of this order in which to
reopen this case by paying the $400.00 filing fee in full.
Court certifies, pursuant to 28 U.S.C. § 1915(a)(3),
that an in forma pauperis appeal from this Order or
the accompanying Judgment would not be taken in good faith.
 Effective May 1, 2013, the cost for
filing a new civil case is $400.00 which includes a $50.00
administrative fee that does not apply to persons granted
in forma pauperis ...