Mosley v. IRS Whistleblower's Office et al

Filing 4

OPINION AND ORDER that pltf's application to proceed in forma pauperis is denied and this case is DISMISSED WITHOUT PREJUDICE; if pltf wishes to continue this case, he must, within 30 days of the entry of this Opinion and Order, pay the required $400 fee and file a motion to reopen the case. Signed by Judge J. Leon Holmes on 9/23/13. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION

TOMMY MOSLEY,
ADC #85548
v.

PLAINTIFF
No. 5:13CV00302 JLH/JTR

MARVIN EVANS;
WILLIAM STRAUGHN; and
INTERNAL REVENUE SERVICE

DEFENDANTS

OPINION AND ORDER
Tommy Mosley is a prisoner in the Tucker Unit of the Arkansas Department of Correction
("ADC"). He has recently filed a pro se § 1983 complaint and an application to proceed in forma
pauperis.
The Prison Litigation Reform Act provides 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).
Prior to filing this lawsuit on September 16, 2013, Mosley filed at least four § 1983 actions
that were dismissed for failing to state a claim upon which relief may be granted. See Mosley v.
Endell; 5:93CV00054 HW (dismissed on March 2, 1993, affirmed on appeal May 24, 1993); Mosley
v. Reed, 5:96CV00119 SMR (dismissed on March 15, 1996, no appeal filed); Mosley v. Ark. Sup.
Ct., 4:96CV00056 GH (dismissed on March 29, 1996, no appeal filed); Mosley v. United Nations,

4:02CV00752 JMM (dismissed on January 7, 2003, no appeal filed).
Nevertheless, Mosley may proceed in forma pauperis if he falls under the “imminent danger”
exception to the three strikes rule. See 28 U.S.C. § 1915(g) (providing that three strikers should be
granted permission to proceed in forma pauperis if they are “under imminent danger of serious
physical injury”); Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998) (explaining that the
exception applies only if the prisoner 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”).
Mosley alleges that defendants are violating his constitutional rights by stealing social
security numbers, committing voter fraud, stealing his identity, violating tax laws, denying him
access to credit reports, denying him access to a telephone, and refusing to pay him whistle blower
rewards. None of those allegations place Mosley in imminent danger of serious physical injury.
Mosley also alleges that ADC employees put his life in danger by telling inmates that he
intended to turn them over to the Internal Revenue Service for committing tax fraud. Mosley,
however, does not clarify when this occurred or how he is currently in imminent danger of serious
physical injury. Additionally, the Court has previously held that similar allegations by Mosley failed
to satisfy the imminent danger exception. See Mosley v. IRS, 5:12CV00041 BSM (docket entries
#10 & #13).
IT IS THEREFORE ORDERED THAT:
1.

Mosley's application to proceed in forma pauperis is DENIED, and this case is

DISMISSED WITHOUT PREJUDICE.
2.

If Mosley wishes to continue this case, he must, within thirty days of the entry of

this Opinion and Order: (a) pay the $400 filing fee in full, noting the above case style and

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number; and (b) file a motion to reopen the case
3.

The Court CERTIFIES, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis

appeal would not be taken in good faith.
IT IS SO ORDERED this 23rd day of September, 2013.

J. LEON HOLMES
UNITED STATES DISTRICT JUDGE

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