Box v. Cassady et al

Filing 17

OPINION, MEMORANDUM AND: HEREBY ORDERED that plaintiff's motions to withdraw the supplemental complaints filed in this action [Doc. # 13 , # 14 and # 16 ] are GRANTED. IT IS FURTHER ORDERED that plaintiff's motion to proceed in forma pauperis [Doc. # 7 ] is DENIED and this case is DISMISSED pursuant to 28 U.S.C. § 1915(g). A separate Order of Dismissal shall accompany this Memorandum and Order.. Signed by District Judge Henry Edward Autrey on 11/07/2014. (CLK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KEITH BOX,
Plaintiff,
v.
JAY CASSADY, et al.,
Defendants.

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No. 4:14CV1392 TIA

OPINION, MEMORANDUM AND ORDER
Before the Court is plaintiff=s amended complaint [Doc. #6], his motion for leave to
proceed in forma pauperis [Doc. #7], as well as a multitude of other filings by plaintiff.1 After
fully reviewing plaintiff=s filings, the Court will deny plaintiff’s motion for leave to proceed in
forma pauperis and dismiss this action, without prejudice. See 28 U.S.C. § 1915(g).
Background
Plaintiff, an inmate at Jefferson City Correctional Center (“JCCC”), filed the instant action
pursuant to 42 U.S.C. ' 1983 alleging violations of his civil rights. Plaintiff filed a motion for
leave to proceed in forma pauperis, pursuant to 28 U.S.C. § 1915.
In the Prison Litigation Reform Act of 1996, Congress enacted what is commonly
described as the Athree strikes@ provision of 28 U.S.C. ' 1915(g).
It provides:

1

On October 2nd, 9th and 15th, “supplements” were filed to plaintiff’s amended complaint. [Doc.
#10, #11 and #12] However, on October 24th and 29th, as well as on November 5, 2014, plaintiff
sought to have these supplements removed from the record, asserting that the documents were
“illegally” filed by other JCCC inmates.
1

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.
If a prisoner is ineligible to proceed under ' 1915, then he may still file an action or appeal, but he
must pay the full filing fee up front or suffer dismissal. Ashley v. E. Dilworth, COB1, 147 F.3d
715, 716B17 (8th Cir.1998).
Plaintiff has filed at least three previous cases that were dismissed as frivolous, malicious
or for failure to state a claim.2 Accordingly, plaintiff has Athree strikes,@ and he cannot proceed in
a ' 1983 action unless he pays the full filing fee or shows that at the time of filing his complaint, he
was being subjected to Aimminent danger.@ 28 U.S.C. ' 1915(g). As set forth below, plaintiff
has not shown that he was subjected to imminent danger at the time of the filing of his complaint.
As such, the Court cannot grant his motion to proceed in forma pauperis at this time. Thus, his
complaint is subject to dismissal.
Discussion
In the body of his amended complaint [Doc. #6], plaintiff alleges in a wholly conclusory
manner that he has been under Aimminent danger@ at some point in time during his incarceration in
the past several years.3

2

See Box v. Bollinger, Case No. 1:02CV105 FRB (E.D. Mo.); Box v. Scott County Jail, Case No.
1:96CV69 LMB (E.D. Mo); Box v. Mississippi County Jail, Case No. 1:96CV22 LMB (E.D. Mo.).
3

Although difficult to discern, it appears that plaintiff’s allegations include assertions about events
that have occurred during his incarceration in JCCC in Jefferson City (located within the venue of
the Federal District Court of the Western District of Missouri), as well as events that occurred at
Potosi Correctional Center (“PCC”), South Central Correctional Center (“SCCC”) and Southeast
Correctional Center (“SECC”).
2

He claims that in December of 2013 he was transferred from Potosi Correctional Center to
JCCC and forced into a “Jesus Sexual Healing Program” that is hidden from the public at JCCC.
He states that as part of the program he was – at some point - subjected to “electrical volts” and
“possible poison by defendants.” Plaintiff fails to allege when these acts occurred or if they are
still occurring on a daily basis.
Because plaintiff’s complaint does not show that at the time of the filing of the amended
complaint that he was suffering from imminent danger, his motion to proceed in forma pauperis
will be denied and his case will be dismissed pursuant to 28 U.S.C. § 1915(g).
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motions to withdraw the supplemental
complaints filed in this action [Doc. #13, #14 and #16] are GRANTED.
IT IS FURTHER ORDERED that plaintiff’s motion to proceed in forma pauperis [Doc.
#7] is DENIED and this case is DISMISSED pursuant to 28 U.S.C. § 1915(g).
A separate Order of Dismissal shall accompany this Memorandum and Order.
Dated this 7th day of November, 2014

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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