Flowers v. Roger et al

Filing 14

ORDER that 11 MOTION for Leave to Proceed in forma pauperis filed by Demetrius Flowers is DENIED, & Plaintiff's Complaint is DISMISSED WITHOUT PREJUDICE. Should Plaintiff wish to continue this case, he must submit the $350 statutory filing fee to the Clerk, noting the case number, within 30 days of the entry date of this Order, along with a motion to reopen the case. Upon receipt of the motion & full payment, this case will be reopened. The Court withdraws 12 Order of refer ral to the Magistrate Judge. The Court additionally certifies, pursuant to 28 U.S.C. Section 1915(a)(3), that an in forma pauperis appeal from this Order or any Judgment entered hereunder, would not be taken in good faith. Signed by Judge James M. Moody on 5/10/2012. (jct)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
DEMETRIUS FLOWERS
V.

PLAINTIFF
NO: 3:12CV00081 JMM/HDY

TROXEL ROGER et al.

DEFENDANTS
ORDER

Plaintiff Demetrius Flowers, formerly held at the Craighead County Jail, filed a pro se
complaint (docket entry #1), pursuant to 42 U.S.C. § 1983, on March 21, 2012. Now pending is
Plaintiff’s application for leave to proceed in forma pauperis (docket entry #11).1
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). The Eighth
Circuit has explicitly upheld the constitutionality of the three-strikes provision. Higgins v.
Carpenter, 258 F.3d 797 (8th Cir. 2001).
Records in the office of the Clerk of Court for the Eastern District of Arkansas reveal that
Plaintiff has had at least three prior civil actions dismissed as frivolous or for failure to state a claim

1

The May 8, 2012 referral to the Magistrate Judge is hereby withdrawn.

upon which relief may be granted.2 Plaintiff’s three strikes have previously been recognized in this
district. See Flowers v. Beavers et al., ED/AR No. 3:08CV148. 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 raises claims regarding his treatment while he was
held at the Craighead County Jail. Because Plaintiff has since been released from custody, such
claims do not describe imminent danger of serious physical injury.3
IT IS THEREFORE ORDERED THAT:
1.

Plaintiff’s application for leave to proceed in forma paupeirs (docket entry #11) 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.
2.

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 10

day of May, 2012.

UNITED STATES DISTRICT JUDGE

2

See Flowers v. Fogelman, ED/AR No. 3:07CV00167; Flowers et al. v. Kasomen et al.
ED/AR No. 3:08CV00065; Flowers v. Wilson et al., ED/AR No. 4:08CV00373.
3

Although it applies only to a “prisoner,” § 1915(g) was triggered the moment Plaintiff
brought the complaint as a prisoner. See Williams v. Scalleta, 11 Fed.Appx. 677 (8th Cir. 2001)
(unpublished per curiam) (definition of prisoner refers to a person who is incarcerated at time action
is filed). Even if § 1915(g) did not apply, it appears that Plaintiff seeks only injunctive relief, and
such a request is moot because of his release.