Hearron v. Mississippi Department of Corrections et al
Filing
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ORDER denying Plaintiff's 2 Motion for Leave to Proceed in forma pauperis and; denying Plaintiff's 3 Motion to File Section 1983 Under Imminent Danger/Temporary Restraining Order. This case is dismissed and a separate Judgment shall be entered pursuant to Rule 58 of the Federal Rules of Civil Procedure. Signed by District Judge Keith Starrett on May 24, 2013 (dsl)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION
KHRISTOFFER MANDELL HEARRON
VS.
CIVIL ACTION NO. 2:13cv94-KS-MTP
MISSISSIPPI DEPARTMENT OF CORRECTIONS,
CHRISTOPHER EPPS, ET AL
ORDER
This cause is before the Court on Motion for Leave to Proceed in Forma Pauperis [2]
and Motion to File § 1983 Under Imminent Danger/Temporary Restraining Order [3] filed by
Plaintiff Khristoffer Mandell Hearron. Plaintiff brings this 42 U.S.C. § 1983 action alleging that
he was denied medical care. The Court finds that and, in fact, the Plaintiff admits that he has
brought at least three civil actions under 28 U.S.C. § 1915, which have been dismissed as
frivolous, malicious, or for failing to state a claim upon which relief can be granted. His in forma
pauperis application in this civil action will therefore be denied pursuant to 28 U.S.C. § 1915(g).
The Court further finds that his Motion to File § 1983 Under Imminent Danger/Temporary
Restraining Order [3] is not well taken and should be denied for the hereinafter stated reasons.
DISCUSSION
The Prison Litigation Reform Act (“PLRA”) provides that a prisoner’s privilege to
proceed in forma pauperis is denied if he 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). Excepted from this bar are cases in which “the prisoner is under imminent danger of
serious physical injury.” Id. The Court considers all actions which were dismissed as frivolous,
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malicious, or which failed to state a claim, whether dismissed before or after enactment of the
PLRA. Adepegba v. Hammons, 103 F.3d 383, 386 (5th Cir. 1996). Denial of in forma pauperis
under the three strikes provision is a:
matter of procedure. Section 1915(b) does not affect a prisoner’s
substantive rights, and it does not block his or her access to the
courts. A prisoner may still pursue any claim after three qualifying
dismissals, but he or she must do so without the aid of the i.f.p.
procedures.... Prisoners who are not allowed to proceed i.f.p. may
pursue their substantive claims just as anyone else by paying the
filing fee. This requirement is neither novel or penal. It does not
increase a prisoner’s liability, but merely put prisoners who abuse
a privilege on the same footing as everyone else.
Id. at 386-87.
Hearron has, on at least three prior occasions, brought civil actions under § 1915, in a
court of the United States. These lawsuits were brought while he was incarcerated with the
Mississippi Department of Corrections. To his credit, Plaintiff admits in the third paragraph of
his motion [3] that he is not eligible to file in forma pauperis unless his Motion for Imminent
Danger is well taken.
The imminent danger exception allows a prisoner to proceed in forma pauperis in cases
where he is in “imminent danger of serious physical danger” 28 U.S.C. § 1915(g). The Fifth
Circuit held, “a prisoner with three strikes is entitled to proceed with his action...only if he is in
imminent danger at the time that he seeks to file his suit in district court or...files a motion to
proceed IFP.” Banos v. O’Guin, 144 F.3d 883, 884 (5th Cir. 1998). “Further, ‘[b]y 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.” Malik v.
McGinnis, 293 F.3d 559, 563 (2nd Cir. 2002) (quoting Abdul-Akbar v. McKelvie, 239 F.3d 307,
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315 (3d Cir. 2001).
Hearron alleges that he has been denied medical care. In his motion he alleges that he
purchased a cell phone and narcotics from an officer with the Mississippi Department of
Corrections and that the payment that he gave to her for the cell phone and narcotics did not
clear and, therefore, she is retaliating against him. The retaliation is prospective and the
statements by the Plaintiff are conclusory and he makes no case for retaliation, other than his
speculation. Therefore, the imminent danger exception does not apply to this civil action.
Hearron is not entitled to pauperis status since the Court denies him permission to
proceed as a pauper, and the Court has not received payment of the filing fee for his civil action,
this case will be dismissed without prejudice.
IT IS THEREFORE ORDERED AND ADJUDGED that, for the reasons stated above,
pro se Plaintiff Khristoffer Mandell Hearron’s Motion [2] for Leave to Proceed in Forma
Pauperis and [3] to File Section 1983 Under Imminent Danger/Restraining Order are hereby
denied.
IT IS FURTHER ORDERED AND ADJUDGED that this case is dismissed. Since
Defendants have not been called on to respond to Plaintiff’s pleading, and the Court has not
considered the merits of Plaintiff’s claims, this Court Order of Dismissal is without prejudice.
See Munday/Elkins Auto. Partners, LTD. v. Smith, 201 F. App’x265, 267 (5th Cir. Oct 2, 2006).
A separate final judgment shall issue pursuant to Federal Ruled of Civil Procedure 58.
IT IS FURTHER ORDERED AND ADJUDGED that the Clerk of Court is directed to
reopen this civil action if the full filing fee of $400. 00 is paid within 30 days from the entry of
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this Order.
SO ORDERED, this the 24th day of May, 2013.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE
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