Pennington v. James et al

Filing 3

ORDER DISMISSING CASE with prejudice and certifying that an ifp appeal from this Order and the accompanying Judgment would not be taken in good faith. Signed by Judge James M. Moody on 9/3/09. (bkp)

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION FREDERICK PENNINGTON, JR. ADC #71305 V. PAUL J. JAMES, Attorney, Little Rock, Arkansas, et al. ORDER OF DISMISSAL On August 31, 2009, Plaintiff, Frederick Pennington, Jr., a prisoner in the Maximum Security Unit of the Arkansas Department of Correction, filed the Complaint initiating this § 1983 action. See docket entries #1 and #2. Since 1988, Plaintiff has filed more than forty separate lawsuits, and he is a well-established three-striker under the Prison Litigation Reform Act ("PLRA").1 Pursuant to the screening function mandated by 28 U.S.C. § 1915A,2 this case will be dismissed, with prejudice, for the reasons explained below. 4:09CV00705 JMM

PLAINTIFF

DEFENDANTS

The "three-strikes" provision of the PLRA specifies that a prisoner cannot proceed in forma pauperis "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) The PLRA requires federal courts to screen prisoner complaints seeking relief against a governmental entity, officer, or employee. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or a portion thereof if the prisoner has raised claims that: (a) are legally frivolous or malicious; (b) fail to state a claim upon which relief may be granted; or (c) seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).
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I. Discussion A. The Kelley Case; 5:08CV00018 JLH On January 28, 2008, Plaintiff filed a § 1983 action alleging that various ADC officials were failing to provide him with adequate medical care for hepatitis C. See Pennington v. Kelley, et al., 5:08CV00018 JLH. The Court determined that Plaintiff's allegations satisfied the imminent danger exception to the three-strikes rule and allowed Plaintiff to proceed with his case.3 Id., docket entry #4. Thereafter, the Court appointed Mr. Paul James to represent Plaintiff and approved his request for funds to hire a medical expert on Plaintiff's behalf. Id., docket entries #39, #56, and #59. On August 25, 2009, the Court issued a Recommended Disposition concluding that Defendants were not deliberately indifferent to Plaintiff's medical needs because they timely began giving him anti-viral medications for treatment of his Hepatitis C. Id., docket entry #177. Accordingly, the Court recommended that Defendants be granted summary judgment, and that the case be dismissed, with prejudice. Id. On August 31, 2009, Plaintiff filed his Objections to the Recommended Disposition.4 Id., docket entry #179. B. The James Case; 4:09CV00705 JMM On the same day, Plaintiff filed this § 1983 action alleging that:: (1) Defendant Paul James provided him with ineffective assistance of counsel in the Kelley case; (2) Defendant Dr. Otis

See 28 U.S.C. § 1915(g) (providing that three-strikers should, nevertheless, be granted permission to proceed in forma pauperis if they are "under imminent danger of serious physical injury"). The Eighth Circuit has clarified that the imminent danger exception applies only if the prisoner alleges that he is in imminent danger at the time of filing. Martin v. Shelton, 319 F.3d 1048, 1058 (8th Cir. 2003); Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998). The Recommended Disposition is still pending before the Honorable J. Leon Holmes, United States Chief District Judge. -24

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Gordon wrongfully refused to serve as Plaintiff's medical expert in the Kelley case; (3) Dr. Arshad Malik gave erroneous opinions as Plaintiff's medical expert in the Kelley case; and (4) Correctional Medical Services, Inc.'s Regional Director Roland Anderson wrongfully arranged for Dr. Malik to only review Plaintiff's medical records in the Kelley case, and not give him a physical examination. See Pennington v. James, et al., 4:09cv00705 JMM; docket entry #2. It is clear from the face of the Complaint that Plaintiff's claims are a frivolous collateral attack on the proceedings in the Kelley case, which is still pending. Additionally, none of these allegations satisfy the imminent danger exception to the three-strikes rule. II. Conclusion IT IS THEREFORE ORDERED THAT: 1. Plaintiff's Application to Proceed In Forma Pauperis (docket entry #1) is DENIED,

pursuant to 28 U.S.C. § 1915(g). 2. Pursuant to the screening function mandated by 28 U.S.C. § 1915A, this case is

DISMISSED, WITH PREJUDICE, as being frivolous. 3. The Court CERTIFIES, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma

pauperis appeal from this Order of Dismissal and the accompanying Judgment would not be taken in good faith. Dated this 3rd day of September, 2009. UNITED STATES DISTRICT JUDGE

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