Stewart v. Evans et al, No. 5:2017cv00021 - Document 5 (E.D. Ark. 2017)

Court Description: OPINION AND ORDER denying Stewart's 1 application to proceed in forma pauperis, and dismissing this case without prejudice. If Stewart wishes to continue this case, he must, within 30 days of the entry of this Opinion and Order: pay the $400 filing fee in full and file a motion to reopen the case. The Court certifies that an in forma pauperis appeal would not be taken in good faith. Signed by Judge J. Leon Holmes on 2/22/2017. (ljb)
Download PDF
Stewart v. Evans et al Doc. 5 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION PHILLIP DEWAYNE STEWART, ADC #151956 v. PLAINTIFF No. 5:17CV00021 JLH/JTR GLADYS EVANS, Law Library Supervisor, Varner Unit, ADC, et al. DEFENDANTS OPINION AND ORDER Phillip Dewayne Stewart is a prisoner in the Varner Unit of the Arkansas Department of Correction. He has filed a pro se section 1983 complaint and an application to proceed in forma pauperis. Documents #1 and #2. The Prison Litigation Reform Act 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). Prior to filing this lawsuit on January 23, 2017, Stewart filed at least four cases that were dismissed for failing to state a claim upon which relief may be granted. See Stewart v. Evans, No. 5:16CV00081 (E.D. Ark. dismissed March 24, 2016); Stewart v. Hobbs, No. 6:15CV6023 (W.D. Ark. dismissed Jan. 26, 2016); Stewart v. Murphy, No. 6:14CV6077 (W.D. Ark. dismissed March 15, 2015); Stewart v. Hobbs, No. 5:13CV00381 (E.D. Ark. dismissed Jan. 31, 2014). Nevertheless, Stewart 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). In the complaint, Stewart alleges that defendants violated his constitutional rights in connection with a major disciplinary he received on Dockets.Justia.com June 16, 2016. Document #2. Nothing in Stewart’s allegations suggests that he is currently in imminent danger of serious physical injury. IT IS THEREFORE ORDERED THAT: 1. Stewart’s application to proceed in forma pauperis is denied, and this case is dismissed without prejudice. Document #1. 2. If Stewart wishes to continue this case, he must, within thirty days of the entry of this Opinion and Order: (a) pay the $400 filing fee in full, noting the above case style and number; and (b) file a motion to reopen the case. 3. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis appeal would not be taken in good faith. IT IS SO ORDERED this 22nd day of February, 2017. UNITED STATES DISTRICT JUDGE -2-