September 14, 2009
Plaintiff, an inmate incarcerated in the Tucker Unit of the Arkansas Department of Correction, filed a pro se Complaint (Doc. No. 2), pursuant to 42 U.S.C. § 1983, accompanied by an Application to Proceed In Forma Pauperis (Doc. No. 1). Pursuant to the three-strikes provision of the Prison Litigation Reform Act (" PLRA"), the Court orders that Plaintiff's claims be dismissed.
The three-strikes provision of the PLRA requires the Court to dismiss a prisoner's in forma pauperis action at any time, sua sponte or upon a motion of a party, 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." 28 U.S.C. § 1915(g). The Eighth Circuit has explicitly upheld the constitutionality of this three-strikes provision. Higgins v. Carpenter, 258 F.3d 797 (8th Cir. 2001).
Plaintiff has well exceeded his limit of three meritless causes of action. During Plaintiff's incarceration, he has filed nine 42 U.S.C. § 1983 complaints in United States District Court for the Eastern District of Arkansas. Of these, at least three have been dismissed as frivolous or failure to state a claim. In the instant Complaint, Plaintiff makes nearly identical allegations he made unsuccessfully on two prior occasions. In Alexander/Ryahim v. Langston, 4:06CV00845 SWW, the court dismissed Plaintiff's claims as barred by res judicata because the court had already dismissed these claims in Alexander/Ryahim v. Monroe, 4:07CV01063 JLH, aff'd. 08-1281 (8th Cir. May 13, 2009).
Alexander/Ryahim v. Daniels, 5:03CV00181 JMM (dismissed as frivolous and assessed a strike, without appeal); Alexander/Ryahim v. Monroe, 4:07CV01063 JLH (dismissed as frivolous and assessed a strike), aff'd. 08-1281 (8th Cir. May 13, 2009); Alexander/Ryahim v. Langston, 4:06CV00845 SWW (dismissed as frivolous and assessed a strike), appeal dismissed on Plaintiff's motion in case no. 06-3940 (8th Cir. April 23, 2007).
Plaintiff has failed to make a showing that he should be relieved from the three-strikes provision because of imminent danger of serious physical injury. To qualify for the imminent danger exception to the three-strikes provision, a plaintiff must allege facts that establish conditions involving imminent danger of serious bodily injury at the time of filing the complaint. McAlphin v. Toney, 281 F.3d 709 (8th Cir. 2002). Plaintiff's sweeping allegations, no different from previously alleged on two prior occasions, fail to establish a situation of imminent danger to Plaintiff.
IT IS THEREFORE ORDERED that Plaintiff's claims are DISMISSED WITHOUT PREJUDICE and his Motion for Leave to Appeal In Forma Pauperis is DENIED. Should Plaintiff, within ten (10) days of the date of entry of this Order, submit the statutory filing fee of $350.00 to the Clerk of the Court, noting the case style and number, his case may be re-opened. All pending motions are DENIED as moot.