Ellis v. Drummond

Filing 11

ORDER granting in part Defendant's motion to vacate Plaintiff's in forma pauperis status 9 . The order granting Plaintiff in forma pauperis status is vacated and Plaintiff's in forma pauperis status is revoked 3 . The motion is denied in all other respects. If Plaintiff wishes to proceed with this action, he must tender the full filing fee of $400 within 14 days of this order's entry. Signed by Magistrate Judge Joe J. Volpe on 4/19/2016. (lej)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
EASTERN DIVISION
TYRONE ELLIS, ADC # 149250
v.

PLAINTIFF
2:16CV00042-DPM-JJV

PATRICK DRUMMOND, APN,
East Arkansas Regional Unit

DEFENDANT
ORDER

Tyrone Ellis (“Plaintiff”) filed this action pro se and pursuant to 42 U.S.C. § 1983 on March
25, 2016. (Doc. No. 2.) He also submitted an Application to Proceed Without Prepayment of Fees
and Affidavit (“Application”) (Doc. No. 1) which I granted on March 28, 2016 (Doc. No. 3). Now,
Defendant Patrick Drummond has filed a Motion to Vacate Plaintiff’s In forma Pauperis Status
(“Motion”) (Doc. No. 9) and argues Plaintiff is a “three-striker” within the meaning of 28 U.S.C.
§ 1915 (g). I have reviewed the evidence submitted in support of the Motion and conclude that it
should be granted in part. Plaintiff has had at least three cases dismissed as frivolous or for failure
to state a claim upon which relief may be granted.1 Moreover, the allegations at issue in this suit do
not indicate Plaintiff is in imminent danger of serious physical harm insofar as he is complaining
about a medical delay which began September 4, 2015 and was resolved on September 19, 2015.
(Doc. No. 2 at 4.) Accordingly, the Order (Doc. No. 3) granting him in forma pauperis status will
be vacated and he will be required to tender the filing fee before proceeding with this action.
I decline, however, to require that Plaintiff pay the United States Marshal’s fee associated
with serving Defendant Drummond before this action may proceed. I also decline, as Defendant
suggests, to recommend immediate dismissal of this lawsuit and require Plaintiff to tender the filing

1

See Ellis v. Chandler, et. al., 1:10CV01080-RTD; Ellis v. Chandler, et. al., 1:11CV01006RTD; Ellis v. McDaniel, 5:15CV00236-BSM.
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fee before it is re-opened. Plaintiff shall have fourteen days to tender the fee. If he fails to do so,
I will recommend dismissal at that time.
IT IS, THEREFORE, ORDERED that:
1.

Defendant’s Motion to Vacate Plaintiff’s In forma Pauperis Status (Doc. No. 9) is

GRANTED in part.
A.

The Order granting Plaintiff in forma pauperis status (Doc. No. 3) is vacated

and Plaintiff’s in forma pauperis status is revoked.
B.
2.

The Motion is denied in all other respects.

If Plaintiff wishes to proceed with this action, he must tender the full filing fee of

$400.00 within fourteen days of this Order’s entry. Failure to do so will result in a recommendation
that this action be dismissed.
DATED this 19th day of April, 2016.

____________________________________
JOE J. VOLPE
UNITED STATES MAGISTRATE JUDGE

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