Opinion
4:24-cv-00490-JM-JJV
07-12-2024
STEVEN ISHMAEL XANDER CODY OBAMA ADC #145160 PLAINTIFF v. BRIAN PERKINS, Sergeant, Varner Supermax, ADC, et al. DEFENDANTS
RECOMMENDED DISPOSITION
JOE J. VOLPE, UNITED STATES MAGISTRATE JUDGE.
The following Recommended Disposition (“Recommendation”) has been sent to United States District Judge James M. Moody Jr. Any party may serve and file written objections to this Recommendation. Objections should be specific and include the factual or legal basis for the objection. If the objection is to a factual finding, specifically identify that finding and the evidence that supports your objection. Your objections must be received in the office of the United States District Court Clerk no later than fourteen (14) days from the date of this Recommendation. Failure to file timely objections may result in a waiver of the right to appeal questions of fact.
I. DISCUSSION
Steven Ishmael Xander Cody Obama (“Plaintiff”) is a prisoner in the Arkansas Division of Correction who has filed a pro se Complaint seeking relief pursuant to 42 U.S.C. § 1983. (Doc. 2.) Since 2009, Plaintiff has filed twenty-six lawsuits in this District, with at least four cases being dismissed as strikes under 28 U.S.C. § 1915(g). Thus, Plaintiff can proceed in forma pauperis only if he currently is in imminent danger of serious physical injury. Or he must pay the filing fee in full.
Cody v. Ark. Food Bank Network, 4:09-cv-00089-GTE (E.D. Ark. Feb. 9, 2009); Cody v. Harris, 4:09-cv-00145-JLH (E.D. Ark. Mar. 18, 2009); Forrest, Cody, et al. v. Bowers, 1:11-cv-00026-JLH (E.D. Ark. Apr. 23, 2012); Obama v. Staley, 4:16-cv-00115-JLH (E.D. Ark. Apr. 20, 2016).
In his Complaint, Plaintiff says on: (1) February 21, 2024, Defendant Perkins “assaulted” his leg through the food trap, sprayed him with mace, and seized his earbuds; (2) February 24, 2024, Defendant Bivens called him vulgar names based on Plaintiff's sexual orientation; (3) February 26, 2024, Defendant Bivens served Plaintiff frozen food that had to be reheated and denied him shower call; and (4) on March 11, 2024, Defendant Perkins “interrupted” Plaintiff's Ramadan fast by calling him offensive names. (Doc. 2.) According to the attached grievances, these matters were investigated by Internal Affairs, which found no merit to Plaintiff's allegations. (Id. at 15-38.) As explained in more detail in my June 11, 2024 Order, nothing about these allegations, which occurred approximately three to four months before Plaintiff filed this lawsuit in June 2024, suggest Plaintiff is currently in imminent danger of serious physical injury. See Charron v. Allen, 37 F.4th 483, 486 (8th Cir. 2022); Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998). Accordingly, I denied Plaintiff's in forma pauperis application, gave him twenty-one days to pay the filing fee in full, and cautioned him I would recommend dismissal if he did not timely do so. (Doc. 3.)
Plaintiff has not complied with my instructions, and the time for doing so has expired. Therefore, I recommend the Complaint be dismissed without prejudice. If Plaintiff wishes to proceed with this action, he must pay the $402 fee in full with his objections to this Recommendation.
II. CONCLUSION
IT IS, THEREFORE, RECOMMENDED that:
1. The Complaint (Doc. 2) be DISMISSED without prejudice, and this case be CLOSED.
2. The Court certify, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis appeal from an Order adopting this Recommendation and the accompanying Judgment would not
be taken in good faith.