Flowers v. Beavers et al

Filing 2

ORDER, pursuant to the three-strikes provision of the Prison Litigation Reform Act, DISMISSING WITHOUT PREJUDICE Plaintiff's claims. Should Plaintiff, within 10 days of the date of entry of this Order, submit the $350 statutory filing fee to the Clerk of the Court, noting the case style and number, his case may be re-opened. Signed by Judge Susan Webber Wright on 9/12/08. (jct)

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS JONESBORO DIVISION DEMETRIUS FLOWERS aka Malcolm X V. 3:08CV00148 SWW/HDY

PLAINTIFF

G. BEAVERS, Jailer, Craighead County Detention Facility; and RICK GOODMAN ORDER

DEFENDANTS

Plaintiff, who appears to now be a post-trial detainee at the Craighead County Detention Facility, filed a pro se Complaint (docket entry #1), pursuant to 42 U.S.C. § 1983. For the reasons stated below, the Court orders that Plaintiff's claims be dismissed, pursuant to the three-strikes provision of the Prison Litigation Reform Act ("PLRA"). 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 upheld the constitutionality of the three-strikes provision. Higgins v. Carpenter, 258 F.3d 797 (8th Cir. 2001). The Court's records demonstrate that he has previously filed three § 1983 actions that were

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dismissed for failing to state a claim upon which relief may be granted.1 Accordingly, the Court concludes that Plaintiff has accumulated three strikes, as defined by § 1915(g). Furthermore, Plaintiff's allegation, that he was served a tray with pork and beans despite the Defendants being aware that he is a Muslim who does not consume pork, does not amount to a claim that he was or is in imminent danger. See McAlphin v. Toney, 281 F.3d 709 (8th Cir.

2002)(emphasizing that, to qualify for the imminent danger exception to the three-strikes provision, a plaintiff must allege facts establishing that he was in imminent danger of serious bodily injury at the time of filing the complaint). For all these reasons, IT IS THEREFORE ORDERED that Plaintiff's claims are DISMISSED WITHOUT PREJUDICE. Should Plaintiff, within ten (10) days of the date of entry of this Order, submit the statutory filing fee of $350.00 to the Clerk of the Court, noting the case style and number, his case may be re-opened. DATED this 12th day of September, 2008.

/s/Susan Webber Wright UNITED STATES DISTRICT JUDGE

See Flowers v. Fogelman et al., 3:07CV00167 JMM (dismissed as frivolous); Flowers et al. v. Kasomen et al., 3:08CV00065 JLH (dismissed for failure to state a claim); and Flowers v. Wilson et al., 4:08CV00373 WRW (dismissed as frivolous). 2

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