Lewis v. Norris et al

Filing 3

ORDER DISMISSING CASE pursuant to the "three strikes rule"; denying motion to proceed ifp; and certifying that an ifp appeal taken from this order and judgment would not be taken in good faith. Signed by Chief Judge J. Leon Holmes on 7/30/10. (bkp)

Lewis v. Norris et al

Doc. 3

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION DAVID LEWIS ADC #105476 v. LARRY NORRIS, et al. ORDE R Plaintiff, currently held at the Arkansas Department of Correction's Cummins Unit, filed a pro se complaint (docket entry #2), pursuant to 42 U.S.C. § 1983, along with an application for leave to proceed in forma pauperis (docket entry #1), on June 17, 2010. Because Plaintiff's complaint must be dismissed, without prejudice, pursuant to the threestrikes provision of the Prison Litigation Reform Act ("PLRA"), Plaintiff's application for leave to proceed in forma pauperis will be denied. Under the three-strikes provision of the PLRA, the Court must dismiss a prisoner's in forma pauperis action at any time, sua sponte or upon a motion of a party, if it determines that 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). The Eighth Circuit has explicitly upheld the constitutionality of the three-strikes provision. Higgins v. Carpenter, 258 F.3d 797 (8th Cir. 2001). Records in the office of the Clerk of Court for the Eastern District of Arkansas reveal that Plaintiff has had at least three prior civil actions dismissed for failure to state a claim upon which NO. 5:10CV00177 JLH/HDY DEFENDANTS PLAINTIFF

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relief may be granted.1 Plaintiff's three strikes have been recognized previously. Lewis v. Golden, ED/AR No. 5:09CV315. The Court additionally finds, based on the allegations contained in Plaintiff's present complaint, that he is not in imminent danger of serious physical injury. Specifically, Plaintiff raises constitutional challenges in connection with a disciplinary event in March of 2009. Such claims do not describe imminent danger of serious physical injury. IT IS THEREFORE ORDERED THAT: 1. Plaintiff's complaint is DISMISSED WITHOUT PREJUDICE. Should Plaintiff wish

to continue this case, he must submit the statutory filing fee of $350.00 to the Clerk of the Court, noting the above case style number, within thirty (30) days of the entry date of this order, along with a motion to reopen the case. Upon receipt of the motion and full payment, this case will be reopened. 2. The Court additionally certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma

pauperis appeal from this order or any judgment entered hereunder, would not be taken in good faith. DATED this 30th day of July, 2010.

____________________________________ UNITED STATES DISTRICT JUDGE

See Harris et al. v. Norris et al., ED/AR No. 5:00CV158; Lewis v. Norris et al., ED/AR No. 5:00CV201; Ashley et al. v. Norris et al, ED/AR 5:00CV229. 2

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