Ashley v. Hutchinson

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

RICKEY ASHLEY PLAINTIFF VS. 4:21-CV-00832-BRW ASA HUTCHISON DEFENDANT ORDER

On September 16, 2021, Plaintiff Rickey Ashley (“Plaintiff”) filed a pro se complaint.1 Asking him to file an Application to Proceed Without Prepayment of Fees and Affidavit would be futile because Plaintiff is a three-striker under the provisions of 28 U.S.C. § 1915(g). The Prison Litigation Reform Act (“PLRA”) provides that a prisoner cannot proceed in forma pauperis (“IFP”) 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.2

Before filing this lawsuit on September 16, 2021, Plaintiff filed at least three actions that were dismissed for failing to state a claim upon which relief may be granted.3 Nevertheless, Plaintiff may proceed IFP if he falls under the “imminent danger” exception to the three strikes rule.4 The exception applies only if the prisoner is in imminent danger at the time he filed his Doc. No. 1.

2 28 U.S.C. § 1915(g).

3 See Ashley v. Moody, 4:18-CV-00482 BRW (E.D. Ark. filed July 25, 2018); Ashley v. Moody, et al., 4:18-CV-00497 BSM (E.D. Ark. filed July 31, 2018); Ashley v. Moody, et al., 4:18-CV- 00498 KGB (E.D. Ark. filed July 31, 2018).

4 See 28 U.S.C. § 1915(g) (providing that three strikers should be granted permission to proceed in forma pauperis if they are “under imminent danger of serious physical injury”). complaint; “[a]llegations that the prisoner has faced imminent danger in the past are insufficient.”5

Plaintiff has not alleged facts that establish imminent danger, and nothing in his pleading otherwise indicates or implies he in in imminent danger of serious physical injury. Accordingly, Plaintiff does not qualify for the imminent danger exception. As such, this case is DISMISSED due to Plaintiff’s failure to pay the filing fee. Plaintiff will have thirty (30) days to reopen this case by paying the $402 filing fee in full.

IT IS SO ORDERED this 21st day of September, 2021.

Billy Roy Wilson_________________ UNITED STATES DISTRICT JUDGE

5 Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998).