Dickerson v. Luckett et al
ORDER ADOPTING REPORT AND RECOMMENDATIONS 5 that case should be dismissed without prejudice and dismissal counts as a "strike". Signed by Judge William R. Wilson Jr. on 6/14/07. (bkp)
Dickerson v. Luckett et al
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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION LEONARD DICKERSON ADC # 88387 V. 5:07CV00132 WRW
KIM LUCKETT, Warden, Varner Super Max Unit, Arkansas Department of Correction; GRANT HARRIS, Warden, Varner Super Max Unit, Arkansas Department of Correction; GIPSON, Captain, Varner Super Max Unit, Arkansas Department of Correction ; and RAY HOBBS, Asst. Director, Arkansas Department of Correction ORDER
The Court has reviewed the Proposed Findings and Recommended Disposition submitted by United States Magistrate Judge H. David Young and Plaintiff's objections. After carefully considering Plaintiff's objections and making a de novo review of the record in this case, the Court concludes that the Proposed Findings and Recommended Disposition should be, and hereby are, approved and adopted in their entirety as this Court's findings in all respects. IT IS THEREFORE ORDERED that: 1. This action is DISMISSED WITHOUT PREJUDICE, and dismissal of this action shall counts as a "strike" for purposes of 28 U.S.C. § 1915(g).1
Title 28 U.S.C. § 1915(g) provides that: "In no event shall a prisoner bring a civil action or appeal a judgment in a civil action under this section 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 . . . ." The Eighth Circuit has held that, if a plaintiff fails to exhaust available administrative remedies before initiating an action in federal court, the complaint fails to state a claim upon which relief may be granted. Porter v. Fox, 99 F.3d 271 (8th Cir. 1996); Sharps v. United States Forest Serv., 28 F.3d 815 (8th Cir. 1994).
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2. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis appeal from any Order adopting these recommendations would not be taken in good faith. DATED this 14th day of June, 2007. /s/ Wm. R. Wilson, Jr.______________ UNITED STATES DISTRICT JUDGE
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