Nichols v. McGlothin et al

Filing 11

ORDER ADOPTING 9 Recommended Disposition in all respects. Plaintiff's 2 Complaint is dismissed without prejudice. Signed by Judge Kristine G. Baker on 9/2/2015. (mcz)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
JOHNNY LEE NICHOLS
ADC# 115100
V.

PLAINTIFF

Case No. 5:15-cv-00211 KGB/BD

SHARON MCGLOTHIN, et al.

DEFENDANTS
ORDER

The Court has received a Recommended Disposition (“Recommendation”) from
Magistrate Judge Beth Deere (Dkt. No. 9). Plaintiff Johnny Lee Nichols filed timely
objections (Dkt. No. 10). After careful review of the Recommendation and Mr. Nichols’s
objections, and a de novo review of the record, the Court concludes that the
Recommendation should be, and hereby is, approved and adopted as this Court’s findings
in all respects (Dkt. No. 9).
On July 2, 2015, Mr. Nichols filed his complaint in this action, (Dkt. No. 2) along
with a motion to proceed in forma pauperis (Dkt. No. 1). Mr. Nichols was incarcerated
in the Varner Unit of the Arkansas Department of Correction at the time he filed his
complaint (Dkt. No. 1, at 1), and he remains so today. On July 7, 2015, Magistrate Judge
Deere entered an initial order denying Mr. Nichols’s in forma pauperis application and
directing Mr. Nichols to pay the filing fee in full within 30 days (Dkt. No. 4). The initial
order cautioned Mr. Nichols that failure to pay the filing fee within the prescribed time
would result in dismissal of his case. Mr. Nichols failed to pay the filing fee within 30

days, and on August 14, 2015, Magistrate Judge Deere issued the Recommendation to
dismiss without prejudice this case (Dkt. No. 9).
Magistrate Judge Deere determined that Mr. Nichols does not qualify for in forma
pauperis status under the “three strikes” provision of the Prison Litigation Reform Act.
28 U.S.C. § 1915(g). Mr. Nichols is not claiming in this case that he is under imminent
danger of serious physical injury, so he also does not qualify for in forma pauperis status
through any exception to the three strikes provision. Id.
Mr. Nichols does not contest that he has accumulated three strikes under §
1915(g). Instead, he claims in his objections that dismissal of his case violates his
constitutional rights (Dkt. No. 10). However, it is clearly established that 28 U.S.C. §
1915(g) is constitutional. Lewis v. Sullivan, 279 F.3d 526, 528 (7th Cir. 2002) (“Seven
courts of appeals have considered constitutional objections to § 1915(g).

These

arguments have been based on the due process right of access to the courts, the equal
protection clause, the ex post facto clause, the first amendment right to petition for
redress of grievances, and several others. None has succeeded. All seven decisions have
held that § 1915(g) is constitutional.”). Dismissal of Mr. Nichols’s complaint for failure
to pay the required filing fee is appropriate.

The Court dismisses without prejudice Mr. Nichols’s lawsuit.
IT IS SO ORDERED, this 2nd day of September, 2015.

_______________________________
Kristine G. Baker
United States District Judge