Hill v. Zeek et al

Filing 7

REPORT AND RECOMMENDATIONS: Motion 1 to proceed IFP should be denied pursuant to 28:1915(g); case should be dismissed on the grounds that the claims are barred by the statute of limitations and therefore fail to state claims upon which relief may b e granted -28 U.S.C. § 1915(e)(2)(B)(I)-(iii); Hill should be precluded from filing any future civil action IFP unless he is under imminent danger of serious physical injury; Objections to R&R due by 5/4/2009. Signed by Honorable Barry A. Bryant on April 15, 2009. (cnn)

IN THE UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF ARKANSAS E L DORADO DIVISION K E N T R E LL HILL v. C iv il No. 1:08-cv-01091 PLAINTIFF

EVAN ZEEK, Police Officer, Camden Police Department; ROMERO SCRUGGS, Former Police O fficer, Camden Police Department

DEFENDANTS

R E P O R T AND RECOMMENDATION OF THE MAGISTRATE JUDGE K en trell Hill (hereinafter Hill), an inmate of the Arkansas Department of Correction, Cummins U n it, filed this civil rights action pursuant to 42 U.S.C. § 1983. Hill's complaint was provisionally filed subject to a later determination of whether his in forma pauperis (IFP) application should be gran ted . Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3)(2007), the Honorable Harry F. B a rn es, United States District Judge, referred this case to the undersigned for the purpose of making a report and recommendation. B a ck g ro u n d In his complaint, Hill alleges his rights were violated on or about November 17, 2004, when h e was arrested at his sister's home by Officer Scruggs and Officer Zeek. When Hill asked what he w as being arrested for, he was told on a "delivery" warrant and that Officer Zeek was in charge. Hill alleges his pockets were searched and his money removed. When Officer Scruggs radioed into the Camden Police Department to tell them that they had H ill on the "delivery" warrant, Hill states Zeek and Scruggs were told there was no delivery warrant o n ly minor traffic violations. Despite this, Hill alleges Zeek told Scruggs that he must have a warrant o n his desk back at the station. Hill states he was taken in and placed in a holding cell where he rem ained for thirty minutes.

A fte r thirty minutes, Hill states he learned Zeek did not have a warrant for him. Zeek then allegedly attempted to question Hill about a drug sale but Hill stated he didn't know what Zeek was talk in g about. Zeek and Scruggs then turned Hill over to the Ouachita County Sheriff's Office to be lock ed up where Hill states he remained on earlier charges. Discussion As part of the Prison Litigation Reform Act (PLRA), Pub. L. No. 104-134, 110 Stat. 1321, sign ed into law on April 26, 1996, section1915, which governs proceedings filed in forma pauperis, w as amended in an effort to address concerns about, and reduce the number of, frivolous prisoner in itiated lawsuits. 28 U.S.C. § 1915. Prior to the PLRA's amendments to § 1915, a prisoner who attain ed in forma pauperis (IFP) status was exempted from paying court fees. After the enactment of th e PLRA, prisoners granted IFP status are required to pay the filing fee albeit in installments. 28 U .S .C . § 1915(b). T he PLRA also added subsection 1915(g) which limits the ability of a prisoner, who has filed at least three claims that have been dismissed as frivolous, malicious, or failing to state a claim, to o b tain IFP status. Specifically, § 1915(g) provides that: In no event shall a prisoner bring a civil action . . . under this section if the prisoner h as, on three or more prior occasions, while incarcerated or detained in any facility, b ro u gh t an action . . . in a court of the United States that was dismissed on the grounds th at it is frivolous, malicious, or fails to state a claim upon which relief may be granted, un less the prisoner is under imminent danger of serious physical injury.

28 U.S.C. § 1915(g). This provision has commonly become known as the "three strikes rule" or the "three strikes provision" and has withstood constitutional challenges. See e.g., Medberry v. Butler, 185 F .3 d 1189, 1192 (11th Cir. 1999).

-2-

T he three strikes rule applies to Hill. He has three previous actions that qualify as strikes against him under section 1915(g). See e.g., Hill v. Reyes, et al., Civil No. 1:08-cv-01035 (dismissed as frivolous on 11/5/2008); Hill v. Rent-Way, Inc., et al., Civil No. 4:08-cv-00199 (E.D. AR-dismissed as frivolous on 3/18/2008); Hill v. Morgan, et al., Civil No. 5:92-cv-00566 (E.D. AR--dismissed as fr iv o lo u s on 10/29/1992).1 T h e re is no allegation in this case that Hill is currently under imminent danger of serious ph ysic a l injury. Cf. Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998) (finding allegations of o n go in g danger sufficient where prisoner specified two incidents where he had suffered harm and a lle ga tio n s were supported by documentary evidence, including corroborative prisoner disciplinary repo rts).2 Therefore, Hill is not eligible for IFP status. T h is case is also subject to dismissal because it is barred by the statute of limitations. Section 1 9 8 3 does not contain its own statute of limitation. Instead, causes of action under § 1983 are gov erned by "the most appropriate or analogous state statute of limitations." Goodman v. Lukens Steel C o ., 482 U.S. 656, 660 (1987)(§ 1981 case). See also Wilson v. Garcia, 471 U.S. 261, 268 (1985)(§ 1 9 8 3 case); Bell v. Fowler, 99 F.3d 262, 265-266 (8th Cir. 1996)(§ 1985 case). In Arkansas, this is the three year personal injury statute of limitations, Ark. Code Ann. 16-56-105(3) (2005). See Miller v. Norris, 247 F.3d 736, 739 (8th Cir. 2001)(Ark. Code Ann. § 16-56-105(3) is the statute of lim itation s applicable to § 1983 cases). Thus, any claims based on events that occurred in 2004, would be barred by the statute of limitations. See e.g., Ketchum v. City of West Memphis, Ark., 974 F.2d 81
1

Dismissals of cases as frivolous prior to the PLRA's enactment count towards the three strikes rule. See e.g., Ibrahim v. District of Columbia, 208 F.3d 1032 (D.C. Cir. 2000); Keener v. Pennsylvania Bd. of Probations & Parole, 128 F.3d 143 (3d Cir. 1997).
2 In Ashley v. Dilworth, 147 F.3d 715 (8th Cir. 1998), the Eighth Circuit held that "an otherwise ineligible prisoner is only eligible to proceed IFP if he is in imminent danger at the time of the filing. Allegations that the prisoner has faced imminent danger in the past are insufficient to trigger this exception to § 1915(g) and authorize the prisoner to pay the filing fee on the installment plan." Id. at 717.

-3-

(8th Cir. 1992)(any claim for constitutional violation arising out of allegedly false arrest was subject to three-year Arkansas limitations statute for general personal injury). C o n c lu s i o n A ccor d in gly, I recommend that Hill's IFP application be denied pursuant to 28 U.S.C. § 19 15 (g). Further, I recommend that this case be dismissed on the grounds that the claims are barred by the statute of limitations and therefore fail to state claims upon which relief may be granted. See 2 8 U.S.C. § 1915(e)(2)(B)(I)-(iii)(IFP action may be dismissed on such grounds at any time). In addition, Hill should be precluded from filing any future civil action IFP unless he is under im m in en t danger of serious physical injury. It is therefore recommended that the following order be e n te r e d : T he clerk of this court is directed to provisionally file any new action in which K en trell Hill seeks to proceed IFP. The magistrate judge shall then review the action a n d , if it is a civil action, rather than a criminal or habeas one, and, if Hill has not asserted a valid claim that he is under imminent danger of serious physical injury, the m agistrate judge shall recommend that IFP status be denied.

H ill has ten (10) days from receipt of this report and recommendation in which to file w ritten objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely objections may resu lt in waiver of the right to appeal questions of fact. Hill is reminded that objections must b e both timely and specific to trigger de novo review by the district court. D A T E D this 15th day of April 2009. /s/ Barry A. Bryant HON. BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE

-4-