Hernandez v. Molden et al

Filing 185

ORDER that the Court's Order granting Hernandez's Application to Proceed In Forma Pauperis 4 is hereby SET ASIDE, and this case is DISMISSED WITHOUT PREJUDICE; judgment will be entered accordingly. Signed by Chief Judge J. Leon Holmes on 9/7/11. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
ALBERT HERNANDEZ
ADC #65214
v.

PLAINTIFF

No. 5:09CV00328 JLH/JTR

RAYMOND MOLDEN, et al.

DEFENDANTS
ORDER OF DISMISSAL

Albert Hernandez, who is a prisoner in the Arkansas Department of Correction, filed a pro
se § 1983 Complaint and an Application to Proceed In Forma Pauperis. The Court initially granted
Hernandez’s application but ordered Hernandez to amend his complaint to include specific
allegations against certain defendants. Subsequently, the Court dismissed a number of defendants
for failure to state a claim because, although Hernandez amended his complaint, he did not include
any allegations against those defendants. The Court ordered service on the remaining defendants.
Some of those defendants filed a motion to dismiss which the Court construed as a motion for
summary judgment and granted. Two more defendants filed a supplemental motion to dismiss which
the Court also granted. Three individual defendants remain; namely, Drs. Molden, Duensing, and
Edwards. They have filed a motion for summary judgment arguing that: (1) Hernandez’s complaint
should be dismissed for failure to exhaust his administrative remedies; (2) Hernandez’s in forma
pauperis status should be revoked, and he should be directed to pay the full $350.00 filing fee
pursuant to the three strikes provision of the Prison Litigation Reform Act; (3) Hernandez’s Third
Amended Complaint supercedes his prior complaints, terminates his claims against Drs. Molden and
Edwards, and fails to state a constitutional claim against Dr. Duensing; and (4) Hernandez
abandoned all claims raised in his complaint at the Pre-Jury Evidentiary Hearing held on
February 28, 2011. For the following reasons, the Order granting Hernandez’s Application to

Proceed In Forma Pauperis will be revoked and the case dismissed, without prejudice, pursuant to
the three strikes provision in 28 U.S.C. § 1915(g).
The Prison Litigation Reform Act contains a three strikes provision that 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); see also Higgins v. Carpenter, 258 F.3d 797, 800 (8th Cir. 2002) (holding that
§ 1915(g) is constitutional). Initially, the Court granted Hernandez’s Application to Proceed In
Forma Pauperis without addressing § 1915(g).
The Court’s records demonstrate that Hernandez has previously filed at least three § 1983
actions that were dismissed for failing to state a claim upon which relief may be granted.
See Casiano v. Slayden, 5:93CV00747 WRW (dismissed on January 25, 1994); Hernandez v. Boyd,
5:95CV00572 SWW (dismissed on December 7, 1995); Hernandez v. Ark. Dept. Corr.,
2:05CV00162 JMM (dismissed on March 30, 2006).1 In addition, the Eighth Circuit has affirmed
the dismissal of at least one of Hernandez’s actions because his “allegations were insufficient to state
a claim.” See Hernandez v. Brownlee, 141 F.3d 1168 (8th Cir. 1998).
Even though Hernandez has had three cases dismissed for failure to state a claim, he still may

1

Hernandez also has had several lawsuits dismissed pursuant to the three strike rule. See
Hernandez v. Hobbs, 2:02CV00013 GH; Hernandez v. Ark. Post. Prison. Transfer Bd.,
4:03CV00661 JMM; Hernandez v. ADC, 2:05CV00162 JMM; Hernandez v. ADC, 2:06CV00221
GH; Hernandez v. Minor, 5:10CV00100 JLH; Hernandez v. CMS, 5:10CV00241 BSM; Hernandez
v. CMS, 5:10CV00340 JLH; Hernandez v. ADC, 5:10CV00354 BSM; Hernandez v. CMS,
5:11CV00061 BSM; Hernandez v. Golden, 5:11CV00075 JMM; Hernandez v. Kittrell,
5:11CV00139 DPM.
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be allowed to proceed in forma pauperis if he is under imminent danger of serious physical injury.
28 U.S.C. § 1915(g). In Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998), the Eighth Circuit
explained that the exception applies only if the prisoner alleges that he is in imminent danger “at the
time of filing” and that “[a]llegations that the prisoner has faced imminent danger in the past are
insufficient.” (Emphasis in the original.) Furthermore, the Eighth Circuit has been reluctant to apply
the imminent danger exception unless the alleged ongoing danger subjects the prisoner to a risk of
a truly serious physical injury. Compare Ashley, 147 F.3d at 717 (applying the imminent danger
exception when a prisoner alleged that prison officials continued to place him near his enemies
despite two prior stabbings), with Martin v. Shelton, 319 F.3d 1048,1050 (8th Cir. 2003) (refusing
to apply the imminent danger exception when a plaintiff alleged that prison officials made him work
outside in extreme weather conditions that did not result in any serious physical injuries).
Having conducted a de novo review of the entire record—which includes listening to the
recording of the pre-jury hearing held before Judge Jerome T. Kearney on February 28, 2011—the
Court concludes that Hernandez is not in imminent danger of serious physical injury, nor was he in
such danger when he filed his complaint. Accordingly, the Court concludes that Hernandez has not
satisfied the imminent danger exception to the three strikes rules.
Normally, “determination of the question of leave to proceed in forma pauperis under
28 U.S.C. § 1915 should precede both issuance and service of process.” In re Funkhouser, 873 F.2d
1076, 1077 (8th Cir. 1989). Still, until the entry of the final judgment, the district court retains the
power to set aside, for appropriate reasons, orders previously entered in the case. Auto Servs. Co.,
Inc. v. KPMG, LLP, 537 F.3d 853, 857 (8th Cir. 2008) (citing Partmar Corp. v. Paramount Pictures
Theatres Corp., 347 U.S. 89, 100, 74 S. Ct. 414, 420-21, 98 L. Ed. 532 (1954)). Because the Court

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concludes that § 1915(g) does not permit Hernandez to proceed in forma pauperis in this action, the
Order granting Hernandez’s Application to Proceed In Forma Pauperis is set aside and the
complaint will be dismissed without prejudice. Cf. Gentile v. Mo. Dept. of Corr. and Human Res.,
986 F.2d 214, 217 (8th Cir. 1993) (“[I]f the Court becomes convinced at any time that the complaint
is frivolous or malicious, it may revoke in forma pauperis status and dismiss the complaint under
28 U.S.C. § 1915(d).”).
CONCLUSION
IT IS THEREFORE ORDERED THAT:
1.

The Court’s Order granting Hernandez’s Application to Proceed In Forma Pauperis

(docket entry #4) is set aside;
2.

This case is DISMISSED, WITHOUT PREJUDICE, pursuant to the three strikes rule

set forth in 28 U.S.C. § 1915(g);
3.

If Hernandez wishes to continue this case, he must, within thirty (30) days of the

entry of this Order of Dismissal: (a) pay the $350 filing fee in full, noting the above case style and
number; and (b) file a Motion to Reopen the case. Upon receipt of the Motion and full payment, this
case will be reopened; and
4.

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 7th day of September, 2011.

J. LEON HOLMES
UNITED STATES DISTRICT JUDGE
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