White v. Epps et al

Filing 5

ORDER Denying In Forma Pauperis Status and Dismissing Case Without Prejudice. A separate Final Judgment shall be entered. Signed by District Judge Keith Starrett on March 30, 2012 (dsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION
TOMMY L. WHITE, SR., #M1572
VERSUS

PLAINTIFF
CIVIL ACTION NO. 2:12-cv-42-KS-MTP

CHRISTOPHER EPPS, ET AL.

DEFENDANTS

ORDER DENYING IN FORMA PAUPERIS STATUS
AND DISMISSING CASE
BEFORE the Court is Plaintiff White's application to proceed in forma pauperis (IFP) in
this civil action. On March 14, 2012, Plaintiff, an inmate of the Mississippi Department of
Corrections, filed this pro se Complaint pursuant to 42 U.S.C. § 1983. The named Defendants
are: Christopher Epps; Ronald King; Byron Breland; Beverly Breland; Dr. Ron Woodall;
Wexford Health Sources; E.L. Sparkman; Milton Martin; Ken North; and Hubert Davis.
Plaintiff alleges that on December 2, 2011, Officer Breland used excessive force when he
sprayed Plaintiff with mace, kicked Plaintiff and struck Plaintiff in the “head area several times
with his fist and once with his radio.” Compl. [1] at 5. Plaintiff alleges that Captain Breland
stood by and did nothing to stop the misuse of force. Plaintiff states that after the assault he was
taken to the prison infirmary where he received treatment for exposure to mace. As relief in this
suit, Plaintiff is requesting a declaratory judgment, injunctive relief and monetary damages.
DISCUSSION
The Prison Litigation Reform Act provides, among other things, that a prisoner’s
privilege to proceed in forma pauperis is revoked if he or she has, on three prior occasions
during detention, had an action or appeal dismissed as frivolous, malicious, or for failing to state

a claim. 28 U.S.C. § 1915(g).1 The Court must consider all actions which were dismissed as
frivolous, malicious or which failed to state a claim, whether dismissed before or after enactment
of the PLRA. See Adepegba v. Hammons, 103 F.3d 383, 386 (5th Cir. 1996). The Court finds
that during Plaintiff's incarceration, he has brought at least three civil actions or appeals which
have been dismissed as frivolous, malicious, or for failure to state a claim upon which relief may
be granted.2
Since Plaintiff has three qualifying dismissals under 28 U.S.C. § 1915(g), he is
prevented from proceeding in forma pauperis (“IFP”) in this suit unless he is under imminent
danger of serious physical injury. The imminent danger must exist “at the time [Plaintiff] seeks
to file his suit in district court or . . . files a motion to proceed IFP.” Baños v. O’Guin, 144 F.3d
883, 884 (5th Cir. 1998); see also Abdul-Akbar v. McKelvie, 239 F.3d 307, 315 (3d Cir. 2001)
(“By using the term ‘imminent,’ Congress indicated that it wanted to include a safety valve for
the ‘three strikes’ rule to prevent impending harms, not those harms that had already occurred.”).
Moreover, the threat must be “real and proximate.” Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th
Cir. 2003). Hence, claims of past harm do not qualify, and the exception refers to “a genuine
emergency” where “time is pressing.” Heimerman v. Litshcher, 337 F.3d 781, 782 (7th Cir.

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“In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding
under this section 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.”
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In White v. Epps, No. 2:08cv111 (S.D. Miss.), aff’d, No. 10-60040 (5th Cir. Feb. 14, 2011),
plaintiff's civil rights action was partially dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2).
In White v. MCCF, et al., No. 3:09cv58 (N.D. Miss. Apr. 29, 2010), plaintiff’s civil rights action
was dismissed for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2).
In White v. Warren, No. 5:00cv147 (S.D. Miss. Sept. 16, 2003), plaintiff’s civil rights action was
dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2).

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2003).
After review of the Complaint in conjunction with the applicable case law, the Court
finds that Plaintiff's allegations are insufficient to establish the requisite imminent danger of
serious physical injury. See King v. Livingston, 212 F. App'x 260, 262 (5th Cir. 2006)(per
curiam)(allegations of past attacks by inmates and prison officials which allegedly occurred six
weeks before complaint was filed were insufficient to establish imminent danger); Abdul-Akbar
v. McKelvie, 239 F.3d at 315 (claims of being sprayed with pepper spray one month before filing
suit, combined with a claim that prison officials engaged in “continuing harassment, plots to hurt
or kill him, and other forms of retaliation,” do not sufficiently allege imminent danger);
Bankhead v. King, No. 03-142, 2003 WL 21529822, at *3 (N.D.Tex. July 7, 2003)(allegations
that prison guards used excessive force when removing plaintiff from his cell, failed to protect
him, harassed him, and conspired against him, failed to establish imminent danger of serious
physical injury). Thus, Plaintiff will not be allowed to proceed under the exception provision of
§ 1915(g). Since Plaintiff is being denied permission to proceed as a pauper and the Court has
not received payment of the filing fee for this civil action, this case will be dismissed.
IT IS THEREFORE ORDERED AND ADJUDGED, that Plaintiff’s Motion to proceed in
forma pauperis in this cause is denied pursuant to 28 U.S.C. § 1915(g) and this case is hereby
dismissed.
IT IS FURTHER ORDERED AND ADJUDGED that the Clerk of Court is directed to reopen this civil action if the full filing fee of $350.00 is paid within 30 from the entry of this
Order.
IT IS FURTHER ORDERED AND ADJUDGED that since the Defendants have not been

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called on to respond to Plaintiff's pleading, and the Court has not considered the merits of
Plaintiff's claims, the Court's Order of Dismissal is without prejudice. See Munday/Elkins Auto.
Partners, LTD. v. Smith, 201 F. App’x 265, 267 (5th Cir. 2006).
A separate Final Judgment in accordance with this Order of Dismissal will be entered.
SO ORDERED, this the 30th day of March, 2012.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE

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