Terry

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

JARELL DAVIS TERRY, PLAINTIFF

ADC # 149998

v. 4:25CV01203-JM-JTK

KARMA THORNS, et al. DEFENDANTS

PROPOSED FINDINGS AND RECOMMENDATIONS

INSTRUCTIONS

The following recommended disposition has been sent to United States District Judge

James M. Moody, Jr. 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

Jarell Davis Terry (“Plaintiff”) is in custody at the Larry B. Norris 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 (Doc. No. 1). that makes the

showing required by 28 U.S.C. ' 1915(a), Plaintiff’s Motion for Leave to Proceed in forma

pauperis (“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.

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).

In this case, Plaintiff sued 19 ADC officials alleging various violations of Plaintiff’s

constitutional rights, including due process violations, excessive force, conditions of confinement,

and deliberate indifference to serious medical needs, among others. (Doc. No. 2). Plaintiff’s

claims largely arise from alleged deliberate indifference to serious health problems Plaintiff has

after he swallowed a “flex pen” that is now “stuck inside [him] traveling through [his] lower/mid

torso down [his] legs and feet.” (Id. at 8). This is the fourth lawsuit Plaintiff has filed

complaining about inadequate medical care after swallowing a flex pen.3

2 Terry v. Rechcigl, 2:20-CV-00079-DPM (E.D. Ark.) (dismissed June 30, 2020, for failure

to state a claim) (affirmed on appeal); Terry v. Watson, 2:22-CV-00111-BSM (E.D. Ark. Aug. 25)

(dismissed Aug. 25, 2022, for failure to state a claim) (no appeal filed); Terry v. Payne, 2:23-CV-

00059- BSM (E.D. Ark.) (dismissed Apr. 28, 2023, for failure to state a claim) (no appeal filed).

3 Terry v. Sims, 4:24-CV-00999-BSM (E.D. Ark.); Terry v. Stapleton, et al., 4:25-CV-

00071-KGB (E.D. Ark); and Terry v. Seamster, et al., 4:25-CV-00446-KGB (E.D. Ark.)

In Terry v. Seamster, et al., United States Magistrate Judge Benecia B. Moore set out the

history and content of Plaintiff’s flex pen cases. No. 4:25-CV-00446-KGB-BBM, 2025 WL

3224437, at *1 (E.D. Ark. Aug. 22, 2025), report and recommendation adopted, No. 4:25-CV-

00446 KGB-BBM, 2025 WL 3219481 (E.D. Ark. Nov. 18, 2025). Judge Moore noted that

Plaintiff voluntarily dismissed one of the cases following a recommendation that the action be

dismissed for failure to state a claim because Plaintiff “had received multiple medical examinations

regarding the allegedly swallowed flex pen, including x-rays of his cervical spine that were within

normal limits.” (Id. at 1). In the case before Judge Moore, she found Plaintiff’s claims

“irrational and fanstastical.” (Id. at 4).

Plaintiff continues his irrational and fantastical claims in this case.4 He says the flex pen

“is now at [his] lower stomach . . . still causing daily pain . . . at [his] knees, ankles . . . neck and

spine . . . no treatment given.” (Doc. No. 2 at 9). He also says excessive force in May, 2025,

damaged his spine. (Id. at 8). According to Plaintiff, a slew of ADC officials conspired against

him to prevent him from receiving proper medical care. (Id. at 9, 11). Plaintiff says to deal with

the pain he is using illegal drugs. (Id. at 9).

Plaintiff’s allegations about the flex pen and lack of medical care are baseless. Denton v.

Hernandez, 504 U.S. 25, 32-33 (1992) (explaining that baseless facts include those that are

fanciful, fantastic, and delusional). Many of Plaintiff’s remaining allegations involve incidents

that took place months in the past. Plaintiff’s conditions of confinement may have been

uncomfortable, but nothing in Plaintiff’s pleadings suggests those conditions placed Plaintiff at

risk of serious physical injury. None of Plaintiff other claims suggest so, either.

4 I note Plaintiff’s allegation that I was involved in a conspiracy to provide dangerous

inmates in Max 5 cellphones and I count those allegations as baseless, as well. Denton, 504 U.S.

at 32-33.

Even liberally construing Plaintiffs 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,

Plaintiff's 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 IFP Motion (Doc. No. 1) be DENIED.

2. Plaintiff's Complaint be DISMISSED without prejudice.

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 12" day of December, 2025. □□

JEROME T. KEARNEY

UNITED STATES MAGISTRATE JUDGE