Mosby v. Hobbs et al

Filing 33

ORDER denying 32 Mosby's Third Motion for Reconsideration. Effective today, the Clerk's office is instructed to return any document submitted to Mosby, instead of filing it for docketing, until Mosby has paid the full statutory filing fee. Signed by Chief Judge Brian S. Miller on 6/5/2013. (thd)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
ROGER D. MOSBY
ADC #63018
v.

PLAINTIFF

CASE NO. 5:12CV00459 BSM

RAY HOBBS, et al.

DEFENDANTS
ORDER

Pro se plaintiff Roger Mosby’s third motion for reconsideration [Doc. No. 32] of the
order and judgment dismissing his case for failure to pay the statutory filing fee is denied.
In his motion, Mosby raises three arguments in support of reconsideration. First,
Mosby contends he was improperly denied in forma pauperis status without consideration
of whether he qualified for the “imminent danger” exception to the three strike rule, 28
U.S.C. § 1915(g). This argument fails because the order denying Mosby in forma pauperis
status expressly considered that issue, stating: “Although Mr. Mosby claims that he is in
‘imminent danger’ of ‘bodily harm,’ there are no facts in this case to support such a finding.”
[Doc. No. 3]. Second, Mosby argues he should be permitted to amend his complaint “as a
matter of law.” This argument fails because this case has been dismissed. Any amendment
to the complaint can be considered only after Mosby files a motion to re-open the case and
pays the statutory filing fee.
Mosby’s third argument for reconsideration is that as an indigent prisoner, he cannot
be denied access to the federal court system by virtue of his indigence. This argument, in
effect, challenges the constitutionality of the Prison Litigation Reform Act’s three-strike rule,

which prevents a prisoner, such as Mosby, from proceeding in forma pauperis if he has had
three or more actions dismissed for frivolousness, maliciousness, or for failing to state a
claim.

28 U.S.C. § 1915(g).

This provision has been consistently upheld against

constitutional challenges identical to that raised by Mosby, as courts recognize the PLRA’s
legitimate goal of deterring frivolous prisoner litigation and preventing the resulting abuse
on the federal judicial system and waste of judicial resources. Roller v. Gunn, 107 F.3d 227,
230-31, 233 (4th Cir.1997). The rationale for upholding the PLRA is that:
requiring prisoners to make economic decisions about filing lawsuits does not
deny access to the courts; it merely places the indigent prisoner in a position
similar to that faced by those whose basic costs of living are not paid by the
state. Those living outside of prisons cannot file a lawsuit every time they
suffer a real or imagined slight. Instead, they must weigh the importance of
redress before resorting to the legal system. If a prisoner determines that his
funds are better spent on other items rather than filing a civil rights suit, “he
has demonstrated an implied evaluation of that suit” that the courts should be
entitled to honor.
Murray v. Dosal, 150 F.3d 814, 818 (8th Cir. 1998) (quoting Roller, 107 F.3d at 233).
Mosby is a well established three strike offender and without question a part of the
problem the PLRA is intended to redress. He has been repeatedly informed that this case has
been dismissed, and that if he wishes to prosecute his claims, he must file a motion to re-open
the case and pay the statutory filing fee. Instead of complying with these instructions, Mosby
has persistently continued to file frivolous or incomprehensible pleadings, thereby causing
the unnecessary expenditure of judicial resources that could otherwise be devoted to merited
claims filed by parties who have paid the statutory filing fee. See Roller, 107 F.3d at 233
(observing that “prisoner litigation has assumed something of the nature of a ‘recreational
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activity’” given that prisoners are “provided with free paper, postage, and legal assistance"
and “often have free time on their hands that other litigants do not possess”). Indeed, the
time spent reviewing Mosby’s case could be spent reviewing the cases of prisoners who
actually have legitimate cases.
This pattern of continuing to file pleadings in contravention of court instructions stops
today. From this point forward, the clerk’s office is instructed to return to Mosby any
document he submits until the statutory filing fee has been paid in full.
IT IS THEREFORE ORDERED THAT:
1.

Mosby’s third motion for reconsideration [Doc. No. 32] is denied.

2.

Effective today, the clerk’s office is instructed to return any document

submitted by Mosby, instead of filing it for docketing, until Mosby has paid the full
statutory filing fee.
Dated this 5th day of June 2013.

________________________________
UNITED STATES DISTRICT JUDGE

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