Gray v. Bowers et al

Filing 2

ORDER directing Gray to file the $400 filing and administrative fees or return a completed IFP application, including an accompanying calculation sheet and certificate signed by an authorized official, within 30 days of the date of this order. T he Clerk of Court is directed to enclose an IFP application along with a copy of this order. Gray must amend his complaint within 30 days of the date of this Order to describe why he believes he is currently in danger of imminent serious physical injury. Signed by Magistrate Judge Patricia S. Harris on 12/6/2017. (jak)

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

RUBBY JAMES GRAY

v.

PLAINTIFF

No: 3:17-cv-00323 BSM-PSH

KEITH BOWERS, et al.

DEFENDANTS

ORDER
Plaintiff Rubby James Gray filed a complaint pursuant to 42 U.S.C. § 1983 on December
5, 2017 (Doc. No. 1). He did not pay the required filing and administrative fees or file an
application to proceed in forma pauperis. Gray is incarcerated at the Craighead County Detention
Center. He is a “three-striker” under the three-strikes provision of the Prison Litigation Reform
Act (“PLRA”). The following cases filed by Gray were dismissed for failure to state a claim:
Gray v. Kennemore, No. 3:01-cv-00266-BRW; Gray v. Bristrow, 3:17-cv-00279-JLH; Gray v.
Black, No. 3:17-cv-00293-BSM. The PLRA’s three-strikes provision states that a prisoner cannot
proceed in forma pauperis in a civil action if:
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) (emphasis added). The U.S. Court of Appeals for the Eighth Circuit has
explicitly upheld the constitutionality of the three-strikes provision. See Higgins v. Carpenter, 258
F.3d 797 (8th Cir. 2001). As a three-striker, Gray must show that he was in imminent danger of
serious physical injury at the time he filed the complaint. 28 U.S.C. § 1915(g); Ashley v. Dilworth,

147 F.3d 715, 717 (8th Cir. 1998). The Eighth Circuit has clarified that the imminent danger
exception applies only when there is a genuine risk of an “ongoing serious physical injury.” Martin
v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003).
To proceed with this lawsuit, Gray must pay the $400.00 filing and administrative fees or
return a completed IFP application, including an accompanying calculation sheet and certificate
signed by an authorized official, within 30 days of the date of this order. The Clerk of Court is
directed to enclose an IFP application along with a copy of this order. Additionally, in the event
Gray files an IFP application, the Court will need more information to determine if Gray’s claims
meet the imminent-danger exception to the PLRA’s three-strikes rule. Gray alleges he has been
exposed to mold and is having breathing troubles and headaches. Doc. No. 1 at 3-4. Gray must
amend his complaint within thirty days from the date of this Order to describe why he believes he
is currently in danger of imminent serious physical injury. In the event Gray fails to comply with
this Order within thirty days, the Court will recommend this case be dismissed.
IT IS SO ORDERED this 6th day of December, 2017.

UNITED STATES MAGISTRATE JUDGE 

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