Opinion
5:06CV00094 JLH/HDY.
June 1, 2006
ORDER
The Court has reviewed the Proposed Findings and Recommended Disposition submitted by United States Magistrate Judge H. David Young. No objections have been filed. After careful consideration, the Court concludes that the Proposed Findings and Recommended Disposition should be, and hereby are, approved and adopted in their entirety as this Court's findings in all respects. IT IS THEREFORE ORDERED that:
1. This action is DISMISSED WITH PREJUDICE for failure to state a claim upon which relief may be granted;
2. Dismissal of this action constitutes a "strike" under 28 U.S.C. § 1915(g).
Under § 1915(g), a prisoner may not proceed with a civil suit in forma pauperis if the prisoner has, "on 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." 28 U.S.C. § 1915(g). The Eighth Circuit has held that a dismissal pursuant to Heck v. Humphrey, 512 U.S. 477 (1994), constitutes a strike under § 1915(g). Armentrout v. Tyra, 175 F.3d 1023 (8th Cir. Feb. 9, 1999) (unpub. table op.) (citing Rivera v. Allin, 144 F.3d 719, 730-31 (11th Cir. 1998); Patton v. Jefferson Correctional Ctr., 136 F.3d 458, 462-64 (5th Cir. 1998)).
3. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis appeal from any Order adopting these recommendations would not be taken in good faith.