Smith v. Kennemore

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS TEXARKANA DIVISION LEE ROY SMITH PLAINTIFF

v. Civil No. 4:22-cv-4019

BRANDON KENNEMORE; JON BUTLER; GREG HARPER; and BOBBY WALRAVEN DEFENDANTS ORDER Before the Court is the Report and Recommendation filed March 16, 2022, by the Honorable Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas. (ECF No. 7). Judge Bryant conducted a preservice screening of Plaintiff’s case brought under 42 U.S.C. § 1983. Judge Bryant finds that Plaintiff’s claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994), and recommends that the Court dismiss the case for failure to state a claim upon which relief may be granted. Judge Bryant also recommends that the Court certify that any appeal taken from the dismissal would not be in good faith. Judge Bryant further recommends that the Court direct the Clerk of Court to place a “strike” flag on the case pursuant to 28 U.S.C. § 1915(g).

Plaintiff has not filed objections to the Report and Recommendation and the time to do so has passed. See 28 U.S.C. § 636(b)(1). Being well and sufficiently advised, and finding no clear error on the face of the record, the Court adopts the Report and Recommendation (ECF No. 7) in toto. Plaintiff’s complaint is hereby DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C § 1915(A)(b). Pursuant to 28 U.S.C. § 1915(a)(3), any appeal from this dismissal would not be taken in good faith. Plaintiff is advised that the dismissal of this case can be counted in the future as a “strike” for purposes of 28 U.S.C. § 1915(g).1 The Clerk of Court is DIRECTED to 0F place a section 1915(g) strike flag on this case.

IT IS SO ORDERED, this 5th day of April, 2022.

/s/ Susan O. Hickey Susan O. Hickey Chief United States District Judge

1 The Prison Litigation Reform Act’s “three strikes” provision prevents a prisoner from filing a civil action or appealing a judgment in a civil action in forma pauperis if, on three or more prior occasions, he or she filed an action or appeal that was dismissed on the grounds that it was frivolous, malicious, or failed to state a claim. 28 U.S.C. § 1915(g). This rule “does not close the courthouse doors to prisoners . . .; rather, it merely makes them pay the full ordinary filing fees sooner rather than later.” Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998).