Opinion
4:21-cv-225-BSM-JTR
06-07-2021
KENNETH RAY PITTS ADC #85938 v. ROSE NEWBY, APN, Cummins Unit, et al.
RECOMMENDED DISPOSITION
The following Recommended Disposition has been sent to United States District Judge Brian S. Miller. You 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 objection; and (2) be received by the Clerk of this Court within fourteen (14) days of the date of this Recommendation. If you do not file objections, Judge Miller may adopt this Recommendation without independently reviewing all of the evidence in the record. By not objecting, you may waive the right to appeal questions of fact.
I. Discussion
Plaintiff Kenneth R. Pitts (“Pitts”), is a prisoner in the Cummins Unit of the Arkansas Division of Correction (“ADC”). He has filed a pro se § 1983 Complaint alleging that Defendants violated his constitutional rights and an application to proceed in forma pauperis. Docs. 1 & 2.
On June 4, 2021, the Court entered an Order granting Pitts's Motion to Supplement Complaint with attached documents consisting of grievances and lab reports. To the extent those documents are relevant to Pitts's claims, they do not contain any facts suggesting that Pitts is in imminent danger of serious physical injury.
As a “three-striker, ” Pitts can proceed in forma pauperis only if he currently is in imminent danger of serious physical injury. See 28 U.S.C. § 1915(g); Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998). Pitts's Complaint, liberally construed, alleges that: (1) on January 13, 2021, he was seen by APN Newby, and she only ordered/renewed some of his medications, not all, and he has “reflux” that burns in his chest when he sleeps that “don't feel good;” (2) he hadn't received his eye drops since December 3, 2020; (3) APN Newby did not renew his “double cuff extra blanket” script and he gets cold; (4) the infirmary doesn't respond to his grievances; (5) APN Newby changed one of his scripts; (6) he needed to see the eye doctor because he has a cataract that he believes could cause blindness like what happened to Ray Charles in the movie “Ray;” (7) APN Newby and the Kitchen Supervisor are interfering with his request for a “high calorie high protein diet script;” (8) Correct Solution Care and Director Rory Griffin are interfering with his medical status and putting him to work on the “hoe squad;” (9) APN Newby and other APNs are violating his constitutional rights because they are not doctors and should not be able to make different medical decisions than a doctor did previously; (10) APN Newby committed fraud by reducing his blood pressure medication from 50 milligrams to 25 milligrams; (11) Defendant Gibson failed to respond to his grievances; (12) the prison infirmary is staffed with APNs, who take away medications and scripts, instead of doctors; (13) Defendants are acting deliberately indifferent to his medical conditions and treatment “due to his medical class status M-2 that was taken from him in 2006;” (14) Defendant Davis was deliberately indifferent in giving him 25 milligrams of blood pressure medicine each morning instead of 50 milligrams; and (15) Defendant Gibson was deliberately indifferent when she failed to respond to three “emergency situation” grievances. Doc. 2 at 6-16.
See, e.g., Pitts v. Moore, No. 4:06-cv-01305-JLH (E.D. Ark. Sept. 22, 2006) (dismissing for failure to state a claim); Pitts v. Johnson, No. 5:99-cv-00071-JMM (E.D. Ark. May 11, 1999) (same); Pitts v. Brownlee, No. 5:99-cv-00178-HW (E.D. Ark. Sept. 7, 1999) (same).
In an Order dated March 29, 2021, I denied Pitts's Motion to Proceed In Forma Pauperis (Doc. 1). Doc. 3. In explaining my reason for doing so, I made it clear that Pitts's description of his allegations did not satisfy the imminent-danger exception to the three-strikes rule. Id. Finally, the Order gave Pitts until April 29, 2021 to pay the $402 filing fee, in full, and advised him that, if he wished to proceed with this action, he must pay the filing fee within that time, or his case would be recommended for dismissal, without prejudice. Id. Pitts has not paid the filing fee, and the time for doing so has now expired.
See Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003) (ruling that prisoner must offer “specific fact allegations of ongoing serious physical injury, or of a pattern of misconduct evidencing the likelihood of imminent serious physical injury” to satisfy the exception).
I. Conclusion
IT IS THEREFORE RECOMMENDED THAT:
1. Plaintiff Kenneth Pitts's case be DISMISSED, WITHOUT PREJUDICE.
2. The Court CERTIFY, pursuant to 28 U.S.C. § 1915(a)(3), that any in forma pauperis appeal should not be deemed to be taken in good faith.