Russell v. Epps et al

Filing 32

ORDER DENYING IN FORMA PAUPERIS STATUS. Plaintiff is granted 21 days from the entry of this order to pay to the clerk of court the requisite filing fee of $350.00 plus a $50.00 administrative fee. Signed by Honorable David C. Bramlette, III on August 27, 2013. (lda)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
KEVIN RUSSELL, #K3887
VERSUS

PLAINTIFF
CIVIL ACTION NO. 5:12-cv-160-DCB-MTP

CHRISTOPHER EPPS, et al.

DEFENDANTS

ORDER DENYING IN FORMA PAUPERIS STATUS
AND REQUIRING THE PLAINTIFF TO PAY THE FILING FEE
There came on for consideration of the Court in the captioned cause the plaintiff’s motion
to proceed in forma pauperis in this civil action. The plaintiff originally filed this complaint on
October 1, 2012, on a form used to pursue a § 2241 habeas corpus petition and it was assigned
civil action number 5:12-cv-136. The Court entered a Memorandum Opinion and Order [6] on
November 27, 2012, finding that the plaintiff’s allegations in civil action number 5:12-cv-136
did not challenge his conviction or sentence, but instead the conditions of confinement. As a
result, the Court dismissed the plaintiff’s habeas petition assigned civil action number
5:12-cv-136 and severed the plaintiff’s conditions of confinement claims directing the Clerk to
open a new civil action on November 27, 2012, which was assigned the above referenced civil
action number. See Mem. Op. [1]. As discussed below, the Court has determined that the
plaintiff’s motion to proceed in forma pauperis will be denied.
Plaintiff complains that one of the defendants, Robert Sturdivant, placed “a hit” on
Plaintiff because he had written the A.C.L.U. a letter and reported that Defendant Sturdivant was
beating inmates. Compl. [2] at 3. Additionally, Plaintiff alleges that Defendant Sturdivant had
Plaintiff’s hand broken in January 2012 and April 2012. Id. The complaint is dated September
25, 2012.

The Prison Litigation Reform Act provides, among other things, that a prisoner’s
privilege to proceed in forma pauperis (i.f.p.) 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. See 28 U.S.C. § 1915(g). 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. Adepegba v. Hammons, 103 F.3d 383, 386 (5th Cir. 1996)(counting as a “strike” a
district court’s dismissal, prior to enactment of the PLRA, of a frivolous § 1983 claim).
Additionally, the “three strikes” provision applies to cases pending prior to the enactment of the
PLRA.
Although section 1915(g) attaches consequences to past actions, we find that
these consequences are matters of procedure. Section 1915(g) 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 puts prisoners who abuse a privilege on
the same footing as everyone else.
Id. at 386-87.
The Court finds that during the plaintiff’s incarceration, he has brought at least three civil
actions or appeals under § 1915 which have been dismissed as frivolous, malicious, or for failure
to state a claim upon which relief may be granted. See Russell v. Sparkman, et al., 4:02-cv-185
(N.D. Miss. Sept. 11, 2002)(dismissing Plaintiff’s claim for failure to state a claim); Russell v.
Bearry, et al., 4:04-cv-144 (N.D. Miss. Mar. 7, 2007)(dismissing Plaintiff’s claim for failure to
state a claim), aff’d, No. 07-60310 (5th Cir. Oct. 15, 2008); and Russell v. Liddell, et al., 4:07cv-145 (N.D. Miss. Oct. 12, 2007)(dismissing Plaintiff’s claim for failure to state a claim).
Title 28 U.S.C. § 1915(g), however, contains an exception to the “three-strikes
provision.” This exception allows prisoners to proceed i.f.p. in cases where he is under

imminent danger of serious physical injury. Addressing the exception provision of § 1915 (g),
the United States Court of Appeals for the Fifth Circuit held that
[t]he plain language of the statute leads us to conclude that a prisoner with three
strikes is entitled to proceed with his action or appeal only if he is in imminent
danger at the time that he seeks to file his suit in district court or seeks to proceed
with his appeal or files a motion to proceed IFP.
Banos v. O’Guin, 144 F.3d 883, 884 (5th Cir. 1998) (emphasis added). Clearly, the danger must
exist at the time the complaint was filed. Id. “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 (2d Cir. 2002) (citing Abdul-Akbar v. McKelvie, 239 F.3d 307, 315 (3d Cir. 2001)).
Plaintiff does not meet the exception of imminent danger. The incidents the plaintiff
references occurred months before the complaint and are no longer imminent. See id. (holding
that allegations of past harm will not meet the exception of § 1915(g)). Although the guidance is
somewhat limited, the United States Court of Appeals for the Fifth Circuit has refused to apply
the “imminent danger” exception under similar circumstances. For example,
in King v. Livingston, civil action no. 3:05cv464 (S.D.Tex., September 8, 2005),
the plaintiff Gerald King alleged that his complaints against prison officials,
through grievances and lawsuits, had brought him “threats of bodily harm,
making sure I don’t make parole, and threats that I would never leave the Texas
prison system.” King went on to allege that “these threats have been carried out
through physical assaults by Defendants, bogus and retaliatory disciplinary cases,
major and minor tampering and denial of medical treatment and restrictions, and
denial and delays of chronic prescribed medication as a plot to medically induce
my death.”
Kidd v. Thaler, No. 9:11cv18, 2011 WL 6714527, at *9 (E.D. Tex. Aug. 26, 2011). King
expressly referenced an assault two months before he filed his complaint and further claimed that
his “asthma inhaler was changed from a 30 day renewal to a 90 day renewal so that he would be
‘without it for 60 days to medically induce my death.’” Id. Despite these claims, the Fifth
Circuit affirmed dismissal based on the three-strikes rule, finding as follows:

King argues that he is in imminent danger of serious physical injury because he
has been assaulted several times by the defendants and other inmates and because
the defendants have attempted to cause him serious physical injury from the time
of Hurricane Rita to the present. King fails to meet the showing required to avoid
application of the three strikes bar under 28 U.S.C. § 1915(g).
King v. Livingston, 212 F. App'x 260, 262 (5th Cir. 2006) (citing Baños, 144 F.3d at 884–85).
The alleged threats in the present case, like those alleged in King, fall short of the
imminent danger exception. See also Abdul-Akbar, 239 F.3d at 315(deciding that plaintiff’s
claims of having been sprayed with pepper spray along with allegations that prison officials
continue to harass, plot to hurt or kill the plaintiff as well as other forms of retaliation are
insufficient to allege imminent danger); Basey v. Mooneyham, 172 Fed. App’x 582, 583-84 (5th
Cir. 2006) (per curiam) (inmate’s claim that his “life endangerment” request was ignored and he
was denied a transfer to a different housing facility does not allege “facts showing that he was
under threat of serious bodily injury” at the time he filed his notice of appeal); Davis v. Scott,
No. 00-40401, 2000 WL 1835296, at *1 (5th Cir. Nov. 29, 2000) (per curiam) (assertion by
inmate that he is in imminent danger because he is suffering from mental anguish and mental
distress due to the defendants’ violation of his constitutional rights does not establish that he is
under imminent danger of serious physical injury). Thus, this Court finds that the allegations of
the instant civil action are insufficient to meet the threshold requirement of imminent danger of
serious physical injury at the time the plaintiff filed this complaint. See Banos, 144 F.3d at 88485.
Having considered the allegations of the complaint, the Court finds that plaintiff has
three-strikes and does not meet the exception to proceed i.f.p. Therefore, denial of plaintiff’s
i.f.p. privilege is appropriate. Accordingly, it is
ORDERED AND ADJUDGED, that the plaintiff’s motion [14] to proceed in forma
pauperis in this cause is denied pursuant to 28 U.S.C. § 1915(g).

IT IS FURTHER ORDERED AND ADJUDGED, that plaintiff is granted 21 days from
the entry of this order, to pay to the clerk of court the requisite filing fee of $350.00 plus a
$50.00 administrative fee. If the fee is paid by plaintiff or someone other than plaintiff, there
must be a written explanation that the money is being submitted as payment of the filing fee in
this case (5:12-cv-160-DCB-MTP) on behalf of plaintiff Kevin Russell, #K3887. The fee of
$400.00 in this civil action may be payable to the Clerk, and mailed to the Clerk, 501 E. Court
Street, Suite 2.500, Jackson, Mississippi 39201.
Failure to pay the filing fee in a timely manner may result in the dismissal of this
case for want of prosecution under FED. R. CIV. P. 41(b).
This the 27th day of August, 2013.

s/David Bramlette
UNITED STATES DISTRICT JUDGE