Courtney v. Dalrymple

Filing 11

ORDER adopting 9 Recommended Disposition in its entirety; therefore, Pltf's complaint is DISMISSED WITHOUT PREJUDICE for failure to state a claim; dismissal of this action constitutes a "strike" pursuant to 28 USC 1915(g); the Court certifies that an ifp appeal from this Order and the accompanying Judgment would not be taken in good faith; judgment will be entered accordingly. Signed by Judge Susan Webber Wright on 3/26/09. (vjt)

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION KEVIN K. COURTNEY ADC # 93822 V. 5:09CV00056 SWW PLAINTIFF

STEVE DALRYMPLE, Prosecuting Attorney, Jefferson County

DEFENDANT

ORDE R The Court has reviewed the Proposed Findings and Recommended Disposition submitted by United States Magistrate Judge H. David Young. No objections have been filed. After careful consideration, 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) claim; 2)
1

Plaintiff's Complaint is DISMISSED WITHOUT PREJUDICE for failure to state a

Dismissal of this action constitutes a "strike" for purposes of 28 U.S.C. § 1915(g);1 and

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 . . . ." Dismissals pursuant to Heck v. Humphrey, 512 U.S. 477 (1994) are "strikes" for the purpose of § 1915(g), even though they are dismissals without 1

3) The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis appeal from this Order and the accompanying Judgment would not be taken in good faith. DATED this 26th day of March, 2009.

/s/Susan Webber Wright UNITED STATES DISTRICT JUDGE

prejudice. Armentrout v. Tyra, 175 F.3d 1023 (8th Cir. Feb. 9, 1999)(unpub. table op.) (citing Rivera v. Allin, 144 F.3d 719, 730-31 (11th Cir. 1998); Patton v. Jefferson Correctional Ctr., 136 F.3d 458, 462-64 (5th Cir. 1998)). 2