The opinion
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
JEFFREY ELMORE PLAINTIFF
ADC # 091418
v. 4:25CV00199-BRW-JTK
LATOYA JOHNSON, 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
Jeffrey Elmore (“Plaintiff”) is in custody at the Barbara Ester Unit of the Arkansas Division
of Correction (“ADC”). He filed this pro se civil rights action pursuant to 42 U.S.C. ' 1983. (Doc.
No. 2).
Although Plaintiff submitted a declaration that makes the showing required by 28 U.S.C.
' 1915(a), Plaintiff’s IFP Motion (Doc. No. 1) 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.
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.
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).
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).
As mentioned above, Plaintiff is incarcerated at the Barbara Ester Unit of the ADC. He
sued Cummins Unit Captain Latoya Johnson and Cummins Unit Sergeants Bass and King
(collectively, “Defendants”). (Doc. No. 2). Plaintiff complains Defendants failed to remove him
from harm’s way after Plaintiff was attacked by his cellmate on December 31, 2024. (Id. at 4).
The Cummins Unit is in Grady, Arkansas; the Barbara Ester Unit is in Pine Bluff, Arkansas.
Plaintiff’s Complaint reveals that Plaintiff was incarcerated at the Barbara Ester Unit already at
the time he completed the § 1983 complaint form. (Id. at 3). Plaintiff claims he is in imminent
danger “here at this Unit,” but he provided no factual allegations regarding harm at the Barbara
2 Elmore v. Plummer, et al, 4:24cv00882-BRW (E.D. Ark.) (dismissed on Nov. 14, 2024
for failure to state a claim on which relief may be granted) (appeal filed November 27, 2024);
Elmore v. King, et al., 4:24cv00354-BRW (E.D. Ark.) (dismissed on June 20, 2024 for failure to
state a claim on which relief may be granted) (appeal dismissed for lack of jurisdiction on October
9, 2024); Elmore v. Does, et al., 4:24cv00263-BSM (E.D. Ark.) (dismissed on June 3, 2024 for
failure to state a claim on which relief may be granted) (appeal filed September 27, 2024); and
Elmore v. Bass, et al., 4:24-cv-00110-LPR (E.D. Ark.) (dismissed on Oct. 30, 2024 for failure to
state a claim on which relief may be granted) (no appeal filed).
Ester Unit. Further, nothing in Plaintiffs pleading indicates that Plaintiff is currently sharing a
cell with, or otherwise near, the inmate who attacked Plaintiff. Additionally, Plaintiff's pleading
does not suggest Defendants are currently responsible for Plaintiff's safety, as Defendants are
identified as working at the Cummins Unit. Considering that the alleged violation took place in
the Cummins Unit in December 2024 and that Plaintiff was no longer housed in the Cummins Unit
at the time he filed his Complaint, even the most liberal reading of Plaintiff's Complaint does not
indicate that he is currently in imminent danger of serious physical injury. As a result, Plaintiff is
not entitled to the imminent danger exception. Accordingly, this case should be dismissed.
I. CONCLUSION
IT IS, THEREFORE, RECOMMENDED that:
1. Plaintiff's Complaint be DISMISSED without prejudice.
2. Plaintiff's Motion for Leave to Proceed in forma pauperis (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 $405.00 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 March, 2025.
JEROME T. KEARNEY
UNITED STATES MAGISTRATE JUDGE