IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION

JAMES McALPHIN ADC #88328 PLAINTIFF

No. 5:19-cv-361-DPM-BD

BRUCE McCONNELL, Sgt., Varner Supermax, ADC; and JOHNSON, Lieutenant, Varner Supermax, ADC DEFENDANTS

ORDER On de novo review, the Court adopts the recommendation, Doc. 24, and overrules McAlphin’s objections, Doc. 29. FED. R. CIv. P. 72(b)(3). McAlphin’s motion for injunctive relief, Doc. 3, is denied. The Court adds a word about revoking McAlphin’s in forma pauperis status. A three-striker must show that he’s in imminent danger at the time he files his complaint and at the time he files any appeal.

(¢); Martin v. Shelton,

, 1050 (8th Cir. 2003). And it’s possible to revisit the issue if a defendant shows that the inmate was not, in fact, in danger at the time he filed the complaint. E.g., Shepherd v. Annucci,

(2d Cir. 2019). The Court has not found any authority directly on point, though, about reassessing danger based solely on changed circumstances after the complaint is filed. But, the maxim is, the reason for the law ceasing, the law itself ceases. The exception exists to protect three-strikers against

imminent danger. It “focuses on the risk that the conduct complained of threatens continuing or future injury, not on whether the inmate deserves a remedy for past misconduct.” Martin, 319 F.3d at 1050. The hearing held by Magistrate Judge Deere established conclusively that inmate Scott now poses no imminent danger to McAlphin. If he wants to litigate the underlying merits about whether the previous circumstances put him in danger and harmed him, then McAlphin must pay the $400 filing and docketing fees by 10 April 2020. If he doesn’t, then the Court will withdraw the reference and dismiss the complaint. The Court is not persuaded by McAlphin’s new argument that the statute is unconstitutional. He can litigate any § 1983 claim about circumstances that put him “under imminent danger of serious physical injury.”

(g); see also Higgins v. Carpenter,

, 799-801 (8th Cir. 2001). So Ordered. Mn pn Aclt D.P. Marshalt jr. United States District Judge Ii Marek 2020

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