The opinion
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
MICHAEL OTIS ROBERTSON, PLAINTIFF
ADC # 106563
v. 4:22CV00608-BRW-JTK
RODIGUEZ, et al. DEFENDANTS
PROPOSED FINDINGS AND RECOMMENDATIONS
INSTRUCTIONS
The following recommended disposition (“Recommendation”) has been sent to United
States District Judge Billy Roy Wilson. Any party may file written objections to all or part of this
Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or
legal basis for your objections; and (2) be received by the Clerk of this Court within fourteen (14)
days of this Recommendation. By not objecting, you may waive the right to appeal questions of
fact.
DISPOSITION
I. INTRODUCTION
Michael Otis Robertson (“Plaintiff”) is in custody at the Pulaski County Detention Center.
He filed this pro se civil rights action pursuant to 42 U.S.C. ' 1983 together with a Motion to
Proceed In Forma Pauperis (“IFP Motion”). (Doc. Nos. 1, 2). Although Plaintiff submitted a
declaration that makes the showing required by 28 U.S.C. ' 1915(a), Plaintiff’s IFP Motion should
be denied because Plaintiff is a “three striker” under the Prison Litigation Reform Act (“PLRA”)
and, as set out below, has not established imminent danger.
II. SCREENING
The Court is required to screen prisoner complaints seeking relief against a governmental
entity or officer or employee of a governmental entity. 28 U.S.C. '1915A(a).1 Additionally, the
PLRA, 28 U.S.C. ' 1915(g), provides that:
[i]n 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 three (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.
Plaintiff has had at least three complaints dismissed for failure to state a claim.2 The Court
finds that Plaintiff is a “three-striker” within the meaning of the PLRA. Gonzalez v. United
States, 23 F. 4th 788, 789-91 (8th Cir. 2022).
1 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims
that: (a) are legally frivolous or malicious; (b) fail to state a claim upon which relief may be
granted; or (c) seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.
§ 1915A(b). An action is frivolous if “it lacks an arguable basis either in law or in fact.” Neitzke
v. Williams, 490 U.S. 319, 325 (1989). Whether a plaintiff is represented by counsel or is
appearing pro se, his complaint must allege specific facts sufficient to state a claim. See Martin v.
Sargent, 780 F .2d 1334, 1337 (8th Cir.1985). An action fails to state a claim upon which relief
can be granted if it does not plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). In reviewing a pro se
complaint under § 1915(e)(2)(B), the Court must give the complaint the benefit of a liberal
construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). The Court must also weigh all
factual allegations in favor of the plaintiff, unless the facts alleged are clearly baseless. Denton v.
Hernandez, 504 U.S. 25, 32 (1992).
Additionally, to survive a court’s screening, a complaint must contain sufficient factual
matter, accepted as true, to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009), citing Twombly, 550 U.S. at 570. A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. Twombly, 550 U.S. at 556-7. The plausibility
standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that
a defendant has acted unlawfully. Where a complaint pleads facts that are “merely consistent with”
a defendant’s liability, it “stops short of the line between possibility and plausibility of entitlement
to relief.” Id.
2 Robertson v. Freeman, et al, 4:21cv00939-BRW (E.D. Ark.); Robertson v. Higgins, et al.,
Plaintiff may, however, be permitted to proceed in forma pauperis if he falls under the
“imminent danger” exception to the three strikes rule set forth above. 28 U.S.C. '1915(g). This
exception does not apply to allegations of past danger, and the alleged harm must be “real and
proximate” and occurring at the time the complaint is filed. Lewis v. Sullivan, 279 F.3d 526, 531
(7th Cir. 2002). In the Eighth Circuit, the exception does not apply unless the plaintiff alleges
“specific fact allegations of ongoing serious physical injury, or of a pattern of misconduct
evidencing the likelihood of imminent serious physical injury.” Martin v. Shelton, 319 F.3d 1048,
1050 (8th Cir. 2003).
Plaintiff sued Pulaski County Sheriff Eric S. Higgins and Deputy Rodiguez. (Doc. No.
1). At the time of the incident, Defendant Rodiguez’s cousin, Joseph Villarreal, was also an
inmate at the Pulaski County Detention Center. (Id. at 4). Plaintiff claims Deputy Rodiguez and
Villarreal planned that Villareal and Plaintiff would get into a fight, which Plaintiff characterized
as a “hit.” (Id. at 4-5). The fight took place on February 16, 2022. (Id. at 4). Plaintiff alleges
he was hurt during the fight, but was prevented from getting medical care. (Id. at 4-5).
The incident about which Plaintiff complains took place approximately four-and-a-half
months ago and there is nothing in Plaintiff’s pleading that indicates the threat of attack continues.
Further, public records from the Pulaski County Detention Center do not show an inmate with a
name similar to Joseph Villarreal currently in custody. The Court can notice these records
because they are directly related to the issues here. See Conforti v. United States, 74 F.3d 838,
840 (8th Cir. 1996).
4:21cv00976-LPR (E.D. Ark.); and Robertson v. Turn Key Medical, et al., 4:21cv01066-DPM
(E.D. Ark.).
For the imminent danger exception to apply, the alleged harm must be real and proximate.
Even liberally construing Plaintiff's Complaint, the Court finds Plaintiffs allegations do not
support a finding of “ongoing serious physical injury, or of a pattern of misconduct evidencing the
likelihood of imminent serious physical injury.” Martin, 319 F.3d at 1050. As such, Plaintiffs
Complaint should be dismissed without prejudice pending payment of the $402.00 filing and
administrative fee.
I. CONCLUSION
IT IS, THEREFORE, RECOMMENDED that:
1. Plaintiff's Complaint be DISMISSED without prejudice.
2. Plaintiff's IFP Motion (Doc. No. 1) be DENIED as moot.
3. If Plaintiff wishes to continue this case, he be required to submit the statutory filing
and administrative fee of $402.00 to the Clerk, noting the above case style and number, within
fifteen (15) days of the date of this Order, together with a motion to reopen the case. Upon receipt
of the motion and full payment, the case will be reopened.
4. The Court certify, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis
appeal from any Order adopting these recommendations and the accompanying Judgment would
not be taken in good faith.
Dated this 7" day of July, 2022.
JEROME T. KEARNEY
UNITED STATES MAGISTRATE JUDGE