Nichols v. Blair et al

Filing 18

ORDER adopting 6 Recommendation as this Court's findings in all respects; denying 1 motion to proceed in forma pauperis; denying as moot 9 motions for rehearing; denying as moot 16 17 motions to amend and to change venue. If Mr. Nicho ls wishes to continue this case, he should be required to submit the filing and administrative fees of $400.00 to the Clerk of the Court, noting the above case style number, within 30 days of the date of this Order, along with a motion to reopen the case. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis appeal of this Order would not be taken in good faith. Signed by Judge Kristine G. Baker on 12/16/2015. (ks)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
BILLY MACK NICHOLS, JR.,
ADC #92713
V.

PLAINTIFF

Case No 5:15-cv-0249-KGB

WILLIE BLAIR, et al.

DEFENDANTS
ORDER

The

Court

has

reviewed

the

Proposed

Findings

and

Recommendations

(“Recommendation”) submitted by United States Magistrate Judge Jerry Caveneau (Dkt. No. 6).
Plaintiff Billy Mack Nichols, Jr., subsequently filed a petition for rehearing (Dkt. No. 9) and a
motion to amend petition for rehearing (Dkt. No. 10), both of which this Court construes as
objections to the Recommendation. In his petition for rehearing, Mr. Nichols asserts, among
other things, that APN Griswold purposefully misdiagnosed him and took away his wheelchair
prescription which resulted in internal bleeding in his feet, that APN Bland also purposefully
misdiagnosed him and took away medications and/or refused to refill medications resulting in
internal bleeding in his feet, and that he cannot add the defendants in this action as defendants in
an ongoing previously filed action because he had not exhausted the grievance procedure against
these defendants at the time the previously filed action was commenced (Dkt. No. 6). In
addition, Mr. Nichols asserts that “at the time he filed his grievances he was under the imminent
danger of serious physical injury and . . . should be allowed to proceed with his suit therefore”
(Dkt. No. 6).
After careful review of the Recommendation and Mr. Nichols’s timely objections (Dkt.
Nos. 6, 9, 10), as well as 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. Accordingly, because Mr. Nichols’s complaint should be dismissed without prejudice
pursuant to the three-strikes provision of the Prison Litigation Reform Act (“PLRA”) , 28 U.S.C.
§ 1915(g), his application to proceed in forma pauperis is denied (Dkt. No. 1). If Mr. Nichols
wishes to continue this case, he should be required to submit the filing and administrative fees of
$400.00 to the Clerk of the Court, noting the above case style number, within 30 days of the date
of this Order, along with a motion to reopen the case. Upon receipt of the motion and full
payment, this case should be reopened.
The Court denies as moot Mr. Nichols’s petition for rehearing (Dkt. No. 9) and his
motion to amend petition for rehearing (Dkt. No. 10). The Court has construed these filings as
objections to the Recommendation and considered carefully the arguments Mr. Nichols raises in
these filings. His arguments do not persuade this Court to reject or modify the Recommendation.
Further, the Court denies as moot Mr. Nichols’s motion to amend his complaint (Dkt. No. 16)
and motion to change venue (Dkt. No. 17). The Court has reviewed these filings to ensure that
the points Mr. Nichols attempts to raise do not impact this Court’s analysis under the PLRA;
these filings also do not persuade this Court to reject or modify the Recommendation. The Court
certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis appeal of this Order
would not be taken in good faith.
It is so ordered this 16th day of December, 2015.

______________________________________
Kristine G. Baker
United States District Court Judge

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