Williams v. Norvell et al

Filing 5

ORDER DISMISSING CASE without prejudice. If plaintiff wishes to proceed, he must, within 30 days of the date of this Order, pay the statutory filing fee of $ 350 and a motion to reopen.. Signed by Judge D. P. Marshall Jr. on 8/15/11. (kpr) (Additional attachment(s) added on 8/15/2011: ) # 1 Main Document - Correct) (thd).

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

PINE BLUFF DIVISION

THELMA WILLIAMS, JR.

ADC #93197

v.

PLAINTIFF

5:11-cv-194-DPM-JTR

STEPHAINE NORVELL, Gyst House Clerk;
KENDRA D. ARMSTRONG, Parole Officer;
MCMILLER, Parole Officer;
LARRY D. MAY, ADC Chief Deputy Director;
RUBEN L. JOHNSON, Gysty House Office
Worker; KIMBERLY BENSON, Lighthouse
Office Worker; CURTIS MEINZER, Varner
Unit Warden; JIMMY BANKS, Varner Unit
Warden; SMITH, Varner Unit Treatment; and
RAY HOBBS, ADC Director

DEFENDANTS

ORDER
Thelma Williams, Jr., a prisoner in the Varner Super Max Unit of the
Arkansas Department of Correction, filed a pro se § 1983 Complaint. He has
not paid the $350 filing fee, however, or filed an Application to Proceed In

Forma Pauperis.
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 on motion, if

it determined that the prisoner has on 3 or more prior occasions, while
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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.A.
§ 1915(g) (West 2006). The Eighth Circuit has upheld the constitutionality of

the three-strikes provision. Higgins v. Carpenter, 258 F.3d 797, 801 (8th
Cir.2001).
The Court's records demonstrate that Williams has previously filed at
least three cases that were dismissed for failing to state a claim upon which
relief may be granted. Williams v. Gibson, 5:07-cv-178-WRW (dismissed on 13
August 2007, and dismissal affirmed on appeal on 13 February 2008); Williams
v. Bennett; 5:07-cv-179-JMM (dismissed on 17 August 2007, and dismissal

affirmed on appeal on 13 February 2008); Williams v. Smallwood; 5:07-cv-181­
JMM (dismissed on 13 September 2007, and dismissal affirmed on appeal on
8 December 2008). Williams has accumulated three strikes, as defined by §
1915(g), before filing this action on 2 August 2011. 1
Additionally, Williams has previously had at least thirteen cases
dismissed pursuant to the three-strikes rule. See Williams v. Edward, 2:08-cv­
I

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Even though Williams is a three striker, he may be allowed to proceed

in forma pauperis if he falls under the "imminent danger" exception to the

three strikes rule. 28 U.S.C. § 1915(g). In Ashley v. Dilworth, 147F.3d 715, 717
(8th Cir. 1998) (per curiam), the Eighth Circuit explained that the exception
applies only if the prisoner alleges that he is in imminent danger" at the time
offiling" and that" [a]llegations that the prisoner has faced imminent danger

in the past are insufficient." (Emphasis original.) The Eighth Circuit also has
been reluctant to apply the imminent-danger exception unless the alleged
ongoing danger exposes the prisoner to a risk of 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

188-JLH; Williams v. Sims, 2:08-cv-196-WRW; Williams v. Cathell; 4:09-cv-39­
JMM; Williams v. Ferricher, 5:09-cv-5-JMM; Williams v. Manus, 5:09-cv-144­
SWW; Williams v. Mears, 4:10-cv-140-JLH; Williams v. Johnson, 4:10-cv-141­
SWW; Williams v. Yount, 4:10-cv-142-SWW; Williams v. Crouch,4:10-cv-143­
JMM; Williams v. Yount, 4:10-cv-1759-JLH; Williams v. Hicks, 5:10-cv-125-JLH;
Williams v. Smith, 5:10-cv-228-DPM; Williams v. Smith; 5:10-cv-274-SWW.
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Even though Williams is a three striker, he may be allowed to proceed
in forma pauperis if he falls under the imminent danger" exception to the
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three strikes rule. 28 U.S.C. § 1915(g). In Ashley v. Dilworth, 147 F.3d 715, 717
(8th Cir. 1998) (per curiam), the Eighth Circuit explained that the exception
applies only if the prisoner alleges that he is in imminent danger at the time
1/

offiling" and that [a]llegations that the prisoner has faced imminent danger
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in the past are insufficient." (Emphasis original.) The Eighth Circuit also has
been reluctant to apply the imminent-danger exception unless the alleged
ongoing danger exposes the prisoner to a risk of 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

188-JLH; Williams v. Sims, 2:08-cv-196-WRW; Williams v. Cathell; 4:09-cv-39­
JMM; Williams v. Ferricher, 5:09-cv-5-JNIM; Williams v. Manus, 5:09-cv-144­
SWW; Williams v. Mears, 4:10-cv-140-JLH; Williams v. Johnson, 4:10-cv-141­
SWW; Williams v. Yount, 4:10-cv-142-SWW; Williams v. Crouch,4:10-cv-143­
JMM; Williams v. Yount,4:10-cv-1759-JLH; Williams v. Hicks,5:10-cv-125-JLH;
Williams v. Smith, 5:10-cv-228-DPM; Williams v. Smith; 5:10-cv-274-SWW.
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a plaintiff alleged that prison officials made him work outside in extreme
weather conditions that did not result in any serious physical injuries).
The allegations in Williams's complaint do not establish that he is in
imminent danger of serious physical injury. He alleges only that Defendants
are interfering with or wrongfully denying his request to be released on
parole. These allegations do not satisfy the requirements of 28 U.S.C.A. §
1915(g).
Williams's case is therefore dismissed without prejudice. 28 U.S.C.A.
§ 1915(g) (West 2006). If Williams wishes to proceed with this case, he must,

within thirty days of the entry of this Order: (1) pay the statutory filing fee of
$350 in full, noting the case style and number; and (2) file a motion to reopen.
Williams's motion for copies, Document No.3, is denied as moot. An in forma

pauperis appeal from this Order and the accompanying Judgment would not
be taken in good faith. 28 U.S.C.A. § 1915(a)(3) (West 2006).
So Ordered.

D.P. Marshall Jr.
United States District Judge

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