Banks v. Outlaw et al

Filing 7

ORDER OF DISMISSAL denying pltf's 2 Motion to Proceed in forma pauperis, and dismissing this case without prejudice pursuant to the three strikes rule. Signed by Judge Susan Webber Wright on 6/14/12. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
EASTERN DIVISION

FREDERICK BANKS,
REG. #05711-068
V.

PLAINTIFF
2:12CV00094 SWW/JTR

TIMOTHY C. OUTLAW,
Warden, FCI-FC, et al.

DEFENDANTS

ORDER OF DISMISSAL
Plaintiff, Frederick Banks, is a prisoner in the Federal Correctional Institution
located in Forrest City, Arkansas. He has filed a pro se1 Complaint and an Application
to Proceed In Forma Pauperis. See docket entries #1 and #2.
I. Discussion
The Prison Litigation Reform Act contains a three strikes provision, which
specifies that a prisoner cannot proceed in forma pauperis “if the prisoner has on 3 or

1

Plaintiff is notified of his responsibility to comply with Local Rule 5.5(c)(2),
which states: "It is the duty of any party not represented by counsel to promptly notify
the Clerk and the other parties to the proceedings of any change in his or her address,
to monitor the progress of the case, and to prosecute or defend the action diligently.
A party appearing for himself/herself shall sign his/her pleadings and state his/her
address, zip code, and telephone number. If any communication from the Court to a
pro se plaintiff is not responded to within thirty (30) days, the case may be dismissed
without prejudice. Any party proceeding pro se shall be expected to be familiar with
and follow the Federal Rules of Civil Procedure.”

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); see also Higgins v. Carpenter, 258 F.3d 797, 800 (8th Cir. 2002) (holding
that § 1915(g) is constitutional).
Plaintiff is a well established three-striker, who has filed numerous frivolous
lawsuits in federal courts throughout the country. See, e.g., Banks v. U.S. Marshal,
Case No. 07-6191, 2008 WL 1751700 (10th Cir. April 26, 2008) (unpublished
decision); Banks v. Pennsylvania, Case No. 09-1437, 2010 WL 569545 (W.D. Pa. Jan
4, 2010) (unpublished decision).
Nevertheless, he still may be allowed to 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, nevertheless, 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”).
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In his Complaint, Plaintiff alleges that, on unspecified dates, Defendants: (1)
failed to give him $500 in preparation for his release from prison; (2) falsified a
psychiatric evaluation; (3) placed him on psychiatric medications in retaliation for
filing lawsuits; (4) refused to give him copies of his medical records; (5) failed to
respond to his grievances; (6) violated his First Amendment right to freely exercise
his religious beliefs; and (7) denied him permission to send emails. See docket entry
#1.
None of these allegations suggest that Plaintiff is currently in imminent danger
of serious physical injury. Accordingly, the Court concludes that he has failed to
satisfy the imminent danger exception to the three strikes rule.
II. Conclusion
IT IS THEREFORE ORDERED THAT:
1.

Plaintiff’s Application to Proceed In Forma Pauperis (docket entry #2)

is DENIED, and this case is DISMISSED, WITHOUT PREJUDICE, pursuant to the
three strikes rule set forth in 28 U.S.C. § 1915(g).
2.

If Plaintiff wishes to continue this case, he must, within thirty (30) days

of the entry of this Order of Dismissal: (a) pay the $350 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

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forma pauperis appeal from this Order of Dismissal and the accompanying Judgment
would not be taken in good faith.
Dated this 14th day of June, 2012.

/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE

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