Robertson v. Higgins et al

Filing 11

ORDER adopting 2 proposed findings and recommendations in its entirety as this Court's findings in all respects. The Court certifies that an in forma pauperis appeal taken from the Order and Judgment dismissing this action is considered frivol ous and not in good faith. The Court also denies as moot motions 4 , 5 , 6 , and 8 . The Court grants 9 and 10 Mr. Robertson's requests for a status update and directs the Clerk of Court to send Mr. Robertson a copy of this Order and the docket sheet. Signed by Judge Kristine G. Baker on 1/17/2023. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
MICHAEL OTIS ROBERTSON
ADC #106563
v.

PLAINTIFF

Case No. 4:22-cv-00079-KGB

ERIC S. HIGGINS, et al.

DEFENDANT
ORDER

Before the Court are the Proposed Findings and Recommendations (“Recommendation”)
submitted by United States Magistrate Judge Jerome T. Kearney and several motions filed by
plaintiff Michael Otis Robertson (Dkt. Nos. 2; 4–6; 8–10). Judge Kearney recommends dismissing
Mr. Robertson complaint because Mr. Robertson failed to submit an in forma pauperis application
(“IFP”) or pay the required $402.00 administrative filing fee as required (Id., at 2). Judge Kearney
also notes in his Recommendation that “[i]t would be futile to ask Plaintiff to file an IFP Motion
because he is a ‘three striker’ under the Prison Litigation Reform Act (‘PLRA’)” (Id.). 28 U.S.C.
§ 1915(g) et seq. Mr. Robertson filed a timely objection on February 14, 2022 (Dkt. No. 3). The
same date, Mr. Robertson filed an IFP motion (Dkt. No. 4). Since February 2022, Mr. Robertson
has filed an additional IFP motion, two motions to amend his complaint, and two motions for status
update (Dkt. Nos. 5–6; 8–10).
After careful consideration of the Recommendation, Mr. Robertson’s objections, and a de
novo review of the record, the Court concludes that the Recommendation should be, and hereby
is, approved and adopted in its entirety as this Court’s findings in all respects (Dkt. No. 2).
The Court writes separately to address this matter and Mr. Robertson’s remaining filings.
Judge Kearney concludes that Mr. Robertson is a “three striker” within the meaning of the PLRA
(Dkt. No. 2, at 2). Although certain of the cases Judge Kearney cited to determine Mr. Robertson’s

“three-striker” status may be on appeal, this Court notes that even cases on appeal remain “strikes”
within the meaning of the PLRA, barring Mr. Robertson from proceeding on his current claim
without paying the full filing fee (Id., at 3 n.2). Coleman v. Tollefson, 575 U.S. 532, 538 (2015)
(holding that a prisoner case on appeal determined to be a “strike” by the district court remains a
“strike” while on appeal).

Moreover, in his filings made subsequent to Judge Kearney’s

Recommendation, Mr. Robertson has not indicated to this Court that he faces the threat of
imminent danger necessary to meet the exception to the PLRA’s general rule barring an inmate
plaintiff from proceeding IFP when that plaintiff has previously filed three lawsuits determined to
be frivolous (Dkt. Nos. 4–6; 8). Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). For these
reasons, the Court adopts Judge Kearney’s Recommendation and dismisses without prejudice Mr.
Robertson’s complaint (Dkt. Nos. 1; 2). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that an in forma pauperis appeal taken from the Order and Judgment dismissing this action is
considered frivolous and not in good faith. The Court also denies as moot Mr. Robertson’s two
IFP motions and his two motions to amend his complaint (Dkt. Nos. 4–6; 8). The Court, through
this Order, grants Mr. Robertson’s requests for a status update and directs the Clerk of Court to
send to Mr. Robertson a copy of this Order and the docket sheet (Dkt. Nos. 9–10).
It is ordered this 17th day of January, 2023.
_______________________________
Kristine G. Baker
United States District Judge