Stewart v. Stuckey

Filing 6

OPINION AND ORDER denying Stewart's 1 and 4 applications to proceed in forma pauperis; dismissing without prejudice his 2 complaint; and certifying that an in forma pauperis appeal would not be taken in good faith. If Stewart wishes to continue this case, he must, within 30 days of the entry of this Opinion and Order: (a) pay the $400 filing fee in full, and (b) file a motion to reopen the case. Signed by Judge J. Leon Holmes on 8/16/2017. (ljb)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
PHILLIP DEWAYNE STEWART, ADC #151956
v.

PLAINTIFF

No. 5:17CV00167 JLH/JTR

RONALD JOHN STUKEY,
Correct Care Solutions

DEFENDANT
OPINION AND ORDER

Phillip Dewayne Stewart is a prisoner in the Ester Unit of the Arkansas Department of
Correction. He has filed a pro se ' 1983 complaint and two applications to proceed in forma
pauperis. Documents #1, #2, & #4.
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).
Prior to filing this lawsuit, Stewart filed at least four cases that were dismissed for failing
to state a claim upon which relief may be granted. See Stewart v. Evans, 5:16CV00081 (E.D.
Ark. dismissed March 24, 2016); Stewart v. Hobbs, 6:15CV6023 (W.D. Ark. dismissed Jan. 26,
2016); Stewart v. Murphy, 6:14CV6077 (W.D. Ark. dismissed March 15, 2015); Stewart v. Hobbs,
5:13CV00381 (E.D. Ark. dismissed Jan. 31, 2014).
Nevertheless, Stewart 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). Stewart alleges that, for
seven days in February of 2017, defendant Dr. Ronald Stukey failed to renew his prescription for
Nortriptyline. Document #2.

Nothing in the Complaint suggests that Stewart was in imminent danger when he filed this
action, four months later, on June 19, 2017. See Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir.
1998) (explaining that the prisoner must be in imminent danger “at the time of filing” and that
“[a]llegations that the prisoner has faced imminent danger in the past are insufficient to trigger
[the] exception to § 1915(g).” Further, a temporary delay in receiving prescription medications,
by itself, does not constitute a constitutional violation; deliberate indifference to serious medical
needs is required. See, e.g., Hines v. Anderson, 547 F.3d 915, 920-21(8th Cir. 2008); Zentmyer
v. Kendall Cnty., Ill., 220 F.3d 805, 810-11 (7th Cir. 2000); Ervin v. Busby, 992 F.2d 147, 150-51
(8th Cir. 1993).
IT IS THEREFORE ORDERED THAT:
1.

Stewart’s applications to proceed in forma pauperis (Documents #1 & #4) are

denied, and his complaint (Document #2) is dismissed without prejudice.
2.

If Stewart 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
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 16th day of August, 2017.

UNITED STATES DISTRICT JUDGE

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