Banks v. Warden
ORDER denying pltf's 2 Motion for Leave to Proceed in forma pauperis; pltf's complaint must be dismissed without prejudice pursuant to the three-strikes provision of the PLRA; judgment will be entered accordingly. Signed by Chief Judge J. Leon Holmes on 7/19/12. (vjt)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
NO. 2:12CV00139 JLH/HDY
T.C. OUTLAW, Warden,
Plaintiff Frederick Banks, currently incarcerated at the Federal Correctional Institution in
Forrest City, filed a pro se complaint (docket entry #1), along with an application for leave to proceed
in forma pauperis (docket entry #2), on July 9, 2012.
Because Plaintiff’s complaint must 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 will be denied.
Under the three-strikes provision of the PLRA, a prisoner may not bring a civil action in
forma pauperis if he 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).
Plaintiff is ineligible for in forma pauperis status because he has had more than three cases
dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted. See
Banks v. U.S. Marshal, 274 Fed. Appx. 631 (10th Cir. 2008) (unpublished). Plaintiff’s three strike
status has been recognized in this district as well. See Banks v. Clinton, ED/AR 4:12CV00183.1 The
Court 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 asserts that he was denied
breakfast on June 29, 2012, because the breakfast line closed before the pill line. Such claims do not
describe imminent danger of serious physical injury.
IT IS THEREFORE ORDERED THAT:
Plaintiff’s application for leave to proceed in forma pauperis (docket entry #2) is
DENIED, and Plaintiff’s complaint is DISMISSED WITHOUT PREJUDICE. Should Plaintiff wish
to continue this case, he must 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 this order, along with
a motion to reopen the case. Upon receipt of the motion and full payment, this case will be reopened.
The Court additionally certifies, 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 19th day of July, 2012.
UNITED STATES DISTRICT JUDGE
In Banks v. Clinton, the United States Court of Appeals for the Eighth Circuit ruled that,
under the provisions of the PLRA, Plaintiff could not proceed with an appeal of the dismissal of that
case until he paid the full filing fees.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?