Morningstar v. Smith et al

Filing 3

INITIAL ORDER FOR PRO SE PRISONERS denying #1 IFP motion. The Clerk is directed to send plaintiff the correct IFP motion form along with a copy of this Order. If plaintiff wishes to proceed with this action, he must, on or before 6/20/2023, either pay the $402 filing fee in full or complete and sign the IFP motion, have an authorized prison official complete and sign both the Certificate and Calculation Sheet, and return the IFP Motion and signed forms to the Clerk. Prison officials are directed to assist Morningstar in completing the necessary forms. Signed by Magistrate Judge J. Thomas Ray on 5/19/2023. (jak)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
KHANIS MORNINGSTAR,
also known as Jeramye Hobbs
ADC #164590
V.

PLAINTIFF

No. 4:23-CV-460-KGB-JTR

JAMES H. SMITH, JR, et al.

DEFENDANTS

INITIAL ORDER FOR PRO SE PRISONERS
You have filed this federal civil rights lawsuit pro se, which means you are
representing yourself, without a lawyer. Nevertheless, you must still follow the rules
and procedures provided in the Federal Rules of Civil Procedure, the Local Rules of
the Eastern District of Arkansas, and this Order. If you fail to do so, your case may
be dismissed.
First, follow all court rules. This includes both the Federal Rules of Civil
Procedure and the Local Rules for the Eastern District of Arkansas. In particular,
Local Rule 5.5(c)(2) provides that:
It is the duty of any party not represented by counsel to promptly notify
the Clerk and the other parties to the proceedings of any change in his
or her address, to monitor the progress of the case, and to prosecute or
defend the action diligently. A party appearing for himself/herself must
sign his/her pleadings and state his/her address, zip code, and telephone
number. If any communication from the Court to a pro se plaintiff is
not responded to within thirty (30) days, the case may be dismissed
without prejudice. Any party proceeding pro se must be expected to be
familiar with and follow the Federal Rules of Civil Procedure.
Second, the Prison Litigation Reform Act, 28 U.S.C. § 1915(g), creates the
Three Strikes Rule:
In no event shall a prisoner bring a civil action or appeal a judgment in
a civil action [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.
Accordingly, if this case is dismissed as frivolous, malicious, or for failure to
state a claim, your future right to proceed in forma pauperis in civil rights actions
may be impacted. The filing fee and in forma pauperis requirements are discussed
in further detail below.
Third, you are responsible for providing the correct names and service
address for each Defendant, including the addresses for the “John/Jane Doe”
Defendants. The Court will order service on all properly identified Defendants if it
determines that service is appropriate after screening your claims as required by 28
U.S.C. § 1915A.1 However, you are responsible for providing sufficient identifying
information and valid service addresses for each of them.2 Any Defendant who is
not served within 90 days may be dismissed, without prejudice, from the lawsuit.
Because the Court has not yet screened the Complaint, service is not appropriate
at this time.
Fourth, unlike criminal cases, you do not have a right to an appointed lawyer
in this civil case. If your case proceeds to a jury trial, however, a lawyer will be
appointed before your trial.
Fifth, discovery requests (such as interrogatories and requests for production
of documents) and responses to discovery requests are not permitted to be filed with
the Court. Instead, you must mail discovery requests and responses directly to
counsel for the Defendant. See Fed. R. Civ. P. 5(d). Do not mail discovery requests
to Defendants' counsel until after: (1) the Court has screened your claims and
allowed the case to proceed forward; and (2) counsel for Defendants has filed an
Answer or Motion to Dismiss your Complaint.
1

The Prison Litigation Reform Act requires federal courts to screen prisoner complaints,
and to dismiss any 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(a) & (b).
2

If the Court determines service is appropriate for any properly identified Arkansas
Division of Correction (“ADC”) employee, service will be attempted through the ADC’s
Compliance Division. If any Defendant is no longer employed at the ADC, the Court will order
the person responding to service to provide that Defendant’s last known mailing address under
seal. Despite these efforts from the Court, it remains your burden of providing a valid service
address for each Defendant.

2

Sixth, do not send documents to the Court, unless: (1) the document is
attached to a Motion permitted by the Federal Rules of Civil Procedure or to a
Response to a Motion filed by Defendants; or (2) the Court orders you to file
documents or other evidence. If you send any other documents to the Court, they
will be returned to you.
Seventh, if your case is set for trial, as your trial date approaches, you will be
asked to provide a witness list. After reviewing your witness list, the Court will
subpoena the necessary witnesses. You should not provide the Court with your
witness list until you are directed to do so in a Scheduling Order.
Eighth, every civil case filed by a prisoner requires the plaintiff to pay a filing
fee. 28 U.S.C. § 1915. The PLRA states that “if a prisoner brings a civil action or
files an appeal in forma pauperis, the prisoner shall be required to pay the full
amount of a filing fee.” 28 U.S.C. § 1915(b)(1). A $402 filing and administrative fee
must be paid at the beginning of the lawsuit unless you cannot afford to pay the
entire fee at once. If you cannot afford to pay the filing fee in a lump sum, you may
file a Motion to Proceed in forma pauperis (“IFP Motion”). If you are granted IFP
status, the filing fee is $350, which will be collected in installments from your
institutional account. Importantly, even if your lawsuit is later dismissed, the Court
will continue to collect the filing fee until it has received the full amount of $350
from your institutional account.
You have filed an IFP Motion (Doc. 1) on a state IFP Motion form that does
not comply with the requirements of the PLRA.3
IT IS THEREFORE ORDERED THAT:
1.

Morningstar’s IFP Motion (Doc. 1) is DENIED.

2.
The Clerk is directed to send Morningstar the correct IFP Motion form,
including the necessary Certificate and Calculation Sheet, along with a copy of this
Order.

3

See 28 U.S.C. § 1915(a)(2) (requiring prisoners who seek to proceed in forma pauperis
to “submit a certified copy of the trust fund account statement (or institutional equivalent) for the
prisoner for the 6-month period immediately preceding the filing of the complaint...obtained from
the appropriate official”); 28 U.S.C. § 1915(b)(1) (requiring the Court to consider the prisoner’s
average monthly deposits and average monthly balance when calculating the initial partial filing
fee).

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3.
If Morningstar wishes to proceed with this action, he must, on or
before June 20, 2023, either: (1) pay the $402 filing fee in full; or (2) complete and
sign the IFP Motion, have an authorized prison official complete and sign both the
Certificate and Calculation Sheet, and return the IFP Motion and signed forms to the
Clerk. If Plaintiff does not timely comply with this Order, this case will be
dismissed, without prejudice.
4.
Prison officials are directed to assist Morningstar in completing the
necessary forms.
SO ORDERED this 19th day of May, 2023.
____________________________________
UNITED STATES MAGISTRATE JUDGE

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