Lewis v. Burl et al, No. 2:2010cv00138 - Document 3 (E.D. Ark. 2010)
Court Description: REPORT AND RECOMMENDATIONS that pltf's motion for leave to proceed ifp be denied, and his complt be dismissed without prejudice 1 2 . The Court certify, pursuant to 28 U.S.C. § 1915(a)(3), that an ifp appeal from this order or any judgment entered hereunder, would not be taken in good faith. Objections to R&R due no later than 14 days from the date of the findings and recommendations. Signed by Magistrate Judge H. David Young on 10/1/2010. (lej)
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Lewis v. Burl et al Doc. 3 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS HELENA DIVISION DAVID LEE LEWIS ADC #83252 V. PLAINTIFF NO: 2:10CV00138 JMM/HDY DANNY BURL et al. DEFENDANTS PROPOSED FINDINGS AND RECOMMENDATIONS INSTRUCTIONS The following recommended disposition has been sent to United States District Judge James M. Moody. Any party may serve and file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the objection. If the objection is to a factual finding, specifically identify that finding and the evidence that supports your objection. An original and one copy of your objections must be received in the office of the United States District Court Clerk no later than fourteen (14) days from the date of the findings and recommendations. The copy will be furnished to the opposing party. Failure to file timely objections may result in waiver of the right to appeal questions of fact. If you are objecting to the recommendation and also desire to submit new, different, or additional evidence, and to have a hearing for this purpose before the District Judge, you must, at the same time that you file your written objections, include the following: 1. 2. Why the record made before the Magistrate Judge is inadequate. Why the evidence proffered at the hearing before the District Judge (if such a hearing is granted) was not offered at the hearing before the Magistrate Judge. 1 Dockets.Justia.com 3. The detail of any testimony desired to be introduced at the hearing before the District Judge in the form of an offer of proof, and a copy, or the original, of any documentary or other non-testimonial evidence desired to be introduced at the hearing before the District Judge. From this submission, the District Judge will determine the necessity for an additional evidentiary hearing, either before the Magistrate Judge or before the District Judge. Mail your objections and “Statement of Necessity” to: Clerk, United States District Court Eastern District of Arkansas 600 West Capitol Avenue, Suite A149 Little Rock, AR 72201-3325 DISPOSITION Plaintiff, currently held at the Arkansas Department of Correction’s Varner Super Max Unit, filed a pro se complaint (docket entry #2), pursuant to 42 U.S.C. § 1983, along with an application for leave to proceed in forma pauperis (docket entry #1), on September 20, 2010. Because Plaintiff’s complaint should be dismissed, without prejudice, pursuant to the threestrikes provision of the Prison Litigation Reform Act (“PLRA”), Plaintiff’s application for leave to proceed in forma pauperis should be denied. Under the three-strikes provision of the PLRA, the Court must dismiss a prisoner's in forma pauperis action at any time, sua sponte or upon a motion of a party, if it determines that 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). The Eighth Circuit has explicitly 2 upheld the constitutionality of the three-strikes provision. Higgins v. Carpenter, 258 F.3d 797 (8th Cir. 2001). Records in the office of the Clerk of Court for the Eastern District of Arkansas reveal that Plaintiff has had at least three prior civil actions dismissed as frivolous or for failure to state a claim upon which relief may be granted.1 The undersigned additionally finds, based on the allegations contained in Plaintiff’s present complaint, that he is not in imminent danger of serious physical injury. Specifically, Plaintiff claims he was assaulted by another inmate at a unit where he was previously housed. Such claims do not describe imminent danger of serious physical injury. IT IS THEREFORE RECOMMENDED THAT: 1. Plaintiff’s motion for leave to proceed in forma pauperis (docket entry #1) be DENIED, and his complaint be DISMISSED WITHOUT PREJUDICE. Should Plaintiff wish to continue this case, he should be required to submit the statutory filing fee of $350.00 to the Clerk of the Court, noting the above case style number, within thirty (30) days of the entry date of the Court’s order, along with a motion to reopen the case. Upon receipt of the motion and full payment, the case should be reopened. 2. The Court certify, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis appeal from this order or any judgment entered hereunder, would not be taken in good faith. DATED this 1 day of October, 2010. UNITED STATES MAGISTRATE JUDGE 1 See Lewis v. Doe, ED/AR No. 4:96CV309; Lewis v. Collins et al., ED/AR No. 5:94CV528; Hipps et al. v. Norris et al, ED/AR 5:97CV206. 3
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