# Kennedy v. Tubbs

> District Court, E.D. Arkansas · December 20, 2022

URL: https://www.frixlaw.com/law-library/cases/10007289

## Case

- **Court:** District Court, E.D. Arkansas
- **Decided:** December 20, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
NORTHERN DIVISION

JEREMY KENNEDY PLAINTIFF

v. 3:22CV00317-JM-JTK

JASON TUBBS, et al. DEFENDANTS

ORDER
Jeremy Kennedy (“Plaintiff”) is in custody at the Jackson County Detention Center. He
filed a Motion to Proceed In Forma Pauperis in order to commence a pro se federal civil rights
action without prepayment of the $402.00 filing fees and costs. (Doc. No. 1).1 Plaintiff’s
Motion (Doc. No. 1) is DENIED because he has not included a calculation sheet and certificate
signed by an authorized official of the facility in which Plaintiff is incarcerated. Further, Plaintiff
is a three-striker under the Prison Litigation Reform Act (“PLRA”), and his Complaint, as
currently pled, does not establish imminent danger.
I. In Forma Pauperis Motion
According to the PLRA, a prisoner who is allowed to file a civil action in forma
pauperis still must pay the full amount of the $350 filing fee. See 28 U.S.C. § 1915(b)(1).
Furthermore, before docketing the complaint or, as soon thereafter as practicable, the Court must
review the complaint to identify cognizable claims or dismiss the complaint if it: (1) is frivolous
or malicious; (2) fails to state a claim upon which relief may be granted; or (3) seeks monetary
relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915A. If the case

1 Effective December 1, 2020, the civil filing fee increased to $402, due to the implementation of
a $52 administrative fee. This $52 fee does not, however, apply to plaintiffs who are granted in forma
pauperis status.
is dismissed for any of these reasons, there is no provision in the Act for a refund of any
portion of the filing fee to the prisoner.
Under the Act, in order for the Court to determine how the $350 filing fee will be paid,
the prisoner is required to submit a certificate and calculation sheet prepared and signed by

an authorized official of the incarcerating facility. This calculation sheet reflects the
deposits and monthly balances in the inmate’s trust account at the facility during the six-
month period immediately preceding the filing of the complaint. 28 U.S.C. § 1915(a)(2).
The prisoner is also required to submit “an affidavit that includes a statement of all assets
such prisoner possesses . . . .” 28 U.S.C. § 1915(a)(1). The Act also provides that in no event
shall a prisoner be prohibited from bringing a civil action because he “has no assets and no means
by which to pay the initial partial filing fee.” 28 U.S.C. § 1915(b)(4).
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).2 Additionally, the

PLRA, 28 U.S.C. ' 1915(g), provides that:

2 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).
[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.3 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).
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).

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.

3 Kennedy v. Barker, 5:93-cv-00489 (E.D. Ark.); Kennedy v. Byers, 5:94-cv-00682 (E.D.
Ark.); and Kennedy v. Minor, 5:04-cv-00046 (E.D. Ark.). See also Kennedy v. Hobbs, 4:15-cv-
00288 (E.D. Ark.) (Doc. No. 6) (describing dismissals and attaching files from the archive).
III. PLAINTIFF’S COMPLAINT
In Plaintiff’s Complaint, he sets out four separate incidents of alleged deliberate
indifference to serious medical needs. (Doc. No. 2). First, Plaintiff says he has chronic hepatitis
B and has been receiving care at the UAMS Gastroenterology Clinic since 2014. (Id. at 2).

Plaintiff explains that he visits the chronic care clinic each 90 days to monitor his liver enzymes,
and otherwise visits the clinic each six months. (Id.). Plaintiff claims he has been in the Jackson
County Detention Center “for almost 4 months,” but has seen Elkins only once about Plaintiff’s
hepatitis B. (Id.). According to Plaintiff, Elkins refuses to authorize Plaintiff to go to UAMS
while Elkins is “not qualified to monitor or treat hep B.” (Id.).
Second, Plaintiff claims that in November, Defendant Cooper and Nurse Huddleston
ignored a sick inmate in Plaintiff’s pod, after which approximately 10 other inmates, including
Plaintiff, became ill. (Id.). Plaintiff believes the illness was Covid-19 and says he was left
without treatment. (Doc. No. 2 at 3).
Third, Plaintiff complains that after Thanksgiving he twisted his ankle, but received

medical care only the next day. (Id. at 3-4). When Defendant Huddleston examined Plaintiff’s
ankle, she remarked “oh, you twisted it good, didn’t you?” but offered no further medical care.
(Id.).
Lastly, Plaintiff claims he was denied dental treatment because he could not pay the $40
fee; as a result, Plaintiff pulled his own tooth on the night of December 8, 2022 as he could not
stand the pain any longer. (Id. at 4). Plaintiff did not receive medical care that night despite
alerting Defendants Huddleston, Sissy, and Rodney to his situation. (Id. at 4-5). Plaintiff says
the continuing pain prevents him from sleeping. (Id. at 5). Plaintiff seeks damages. (Doc. No.
2 at 5).
IV. ANALYSIS
Prison officials violate a pretrial detainee’s rights under the Due Process Clause of the
Fourteenth Amendment when they show deliberate indifference to his serious medical needs.
Ivey v. Audrain County, Missouri, 968 F.3d 845, 848 (8th Cir. 2020). For convicted prisoners,

the rights are protected under the Eighth Amendment. To succeed on a claim of deliberate
indifference to a medical need, a plaintiff must show he had an objectively serious medical need
and prison officials had actual knowledge of, but deliberately disregarded, that need. See Id.
“Deliberate indifference may be demonstrated by prison guards who intentionally deny or delay
access to medical care or intentionally interfere with prescribed treatment, or by prison doctors
who fail to respond to prisoner’s serious medical needs.” Dulany v. Carnahan, 132 F.3d 1234,
1239 (8th Cir. 1997). “Mere negligence is not sufficient to support a cause of action under §
1983.” Davis v. Hall, 992 F.2d 151, 153 (8th Cir. 1993).
A. Hepatitis B
Plaintiff does not allege that he is being denied medical treatment altogether. Rather,

Plaintiff alleges that he is being denied the treatment he is accustomed to receiving. To the extent
Plaintiff claims he is not being treated properly, a “mere disagreement with treatment decisions . .
. does not rise to the level of a constitutional violation.” Cejvanovic v. Ludwick, 923 F.3d 503,
507 (8th Cir. 2019).
Plaintiff provided the Court sparse facts in support of his claim. He says only that
Defendant Elkins has seen Plaintiff once for Plaintiff’s hepatitis, and refuses to let Plaintiff be
treated at UAMS. Plaintiff has no right to his receive his preferred course of treatment.
Considering that Plaintiff has been at the Detention Center less than four months, it is unclear from
Plaintiff’s allegations how Defendant Elkins was deliberately indifferent to Plaintiff’s medical

needs. As such, Plaintiff’s allegations in connection with his hepatitis B treatment fail to state a
claim on which relief may be granted. Additionally, Plaintiff has not established imminent
danger. Because Plaintiff is a three-striker, he must establish imminent danger to be able to
proceed in forma pauperis. Otherwise, Plaintiff must pay the $402 administrative and filing fees.
B. November Illness; Twisted Ankle; and Dental Care

Plaintiff’s November illness, twisted ankle, and need for dental care all are past
occurrences. For the imminent danger exception to apply, 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). Plaintiff has not alleged any ongoing threat of harm from these incidents. As
such, Plaintiff has not established that he may proceed in forma pauperis under the imminent
danger exception.
V. Superseding Amended Complaint
Plaintiff may amend his Complaint to cure the defects explained above. If Plaintiff
decides to amend, Plaintiff should submit to the Court, within thirty (30) days of the entry date of
this Order, a superseding Amended Complaint that contains in a single document his claims

against all Defendants he is suing. Plaintiff is cautioned that an Amended Complaint renders his
original Complaint without legal effect.4 Only claims properly set out in the Amended Complaint
will be allowed to proceed. Therefore, Plaintiff’s Amended Complaint should: 1) name each
party he believes deprived him of his constitutional rights and whom he wishes to sue in this
action; 2) provide specific facts against each named Defendant in a simple, concise, and direct
manner, including dates, times, and places if possible; 3) indicate whether he is suing each
Defendant in his/her individual or official capacity, or in both capacities; 4) explain the

4 “An amended complaint ‘ordinarily supersedes the original and renders it of no legal
effect.’” In Home Health, Inc. v. Prudential Ins. Co. of America, 101 F.3d 600, 603 (8th Cir. 1996),
quoting International Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1994) (other citations
omitted).
reasons for an official capacity claim, if he makes one; 5) explain how each defendant’s
actions harmed him personally; 6) explain the relief he seeks; and 7) otherwise cure the
defects explained above and set out viable claims.
If Plaintiff does not submit an Amended Complaint, I will recommend that his Original

Complaint be dismissed. See 28 U.S.C. § 1915(e)(2); Loc. R. 5.5(c)(2).
VI. CONCLUSION
IT IS, THEREFORE, ORDERED that
1. Plaintiff’s IFP Motion (Doc. No. 1) is DENIED without prejudice.
2. Plaintiff must submit either the $402 statutory filing fee or a completed in forma
pauperis application, with the required calculation sheet signed by an authorized official of the
incarcerating facility, within thirty (30) days of the entry date of this Order.5 If Plaintiff does
not do so, I will recommend that his claims be dismissed without prejudice. Loc. R. 5.5(c)(2);
FED. R. CIV. P. 41(b).
3. If Plaintiff wishes to submit an Amended Complaint for the Court’s review, he shall

file the Amended Complaint consistent with the above instructions within thirty (30) days from
the date of this Order. If Plaintiff does not submit an Amended Complaint, I will recommend that
his Original Complaint be dismissed. See 28 U.S.C. § 1915(e)(2); Loc. R. 5.5(c)(2).
4. The Clerk of the Court is directed send to Plaintiff an in forma pauperis application,
including certificate and calculation sheet, as well as a blank 42 U.S.C. § 1983 complaint form.

5 Plaintiff is hereby notified of his responsibility to comply with the Local Rules of the
Court, including Rule 5.5(c)(2), which provides, in part: “If any communication from the Court to
a pro se plaintiff is not responded to within thirty (30) days, the case may be dismissed without
prejudice. Any party proceeding pro se shall be expected to be familiar with and follow the
Federal Rules of Civil Procedure.”
IT IS SO ORDERED this 20" day of December, 2022. : oO

JEROME T. KEARNE
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10007289. Public record. Not legal advice.