Opinion
3:23-cv-140-DPM-JJV
02-22-2024
BRAD PAUL SMITH ADC #660448 PLAINTIFF v. FELECIA M. BELL, Sergeant, Grimes Unit, ADC; TALLEY, Sergeant, Grimes Unit, ADC; JARAMILLO, Sergeant, Grimes Unit, ADC; and CANTRELL, Captain, Grimes Unit, ADC DEFENDANTS
ORDER
D.P. MARSHALL JR., UNITED STATES DISTRICT JUDGE
1. On de novo review, the Court partly adopts the recommendation, Doc. 7, and partly overrules Smith's objections, Doc. 12. Fed.R.Civ.P. 72(b)(3).
2. Smith has sufficiently alleged that Sergeant Bell's labeling him as a snitch placed him in imminent danger. He may therefore proceed in forma pauperis on his claim here even though he is a three-striker. McAlphin v. Toney, 281 F.3d 709, 711 (8th Cir. 2002). The Court notes that Smith failed to exhaust his administrative remedies before filing suit. Doc. 2 at 3-4. That may result in dismissal of this claim. McAlphin v. Toney, 375 F.3d 753, 755 (8th Cir. 2004) (per curiam) ("McAlphin II"). But the Court would prefer to hear argument from Smith and Bell about whether any exception to the exhaustion requirement applies.
3. Smith's other claims don't fall within the imminent danger exception, so they are dismissed without prejudice. McAlphin II, 375 F.3d at 755-56; but see Charron v. Allen, 37 F.4th 483,487-88 (8th Cir. 2022). Sergeant Talley, Sergeant Jaramillo, and Captain Cantrell are dismissed as defendants.
4. Smith's motion to proceed in forma pauperis, Doc. 1, is granted as to his claim against Bell. The Court assesses an initial partial fee of $0.33. After the initial fee is collected, Smith's custodian must collect monthly payments from Smith's prison trust account each time the amount in the account exceeds $10.00. These payments will be equal to twenty percent of the preceding month's income credited to the account; and they will be collected and forwarded to the Clerk of the Court until the $402.00 filing fee is paid in full. 28 U.S.C. § 1915(b)(2). The payments forwarded on Smith's behalf must be clearly identified by case name and case number.
5. The Court directs the Clerk to send a copy of this Order to the Administrator of the Grimes Unit, 300 Corrections Drive, Newport, Arkansas, 72112.
6. Smith recently filed a new case against Bell and others. See Smith v. Hurst, Case No. 3:24-cv-9 (E.D. Ark. 22 January 2024). A Magistrate Judge screened his complaint and directed him to file an Amended Complaint by 11 March 2024. This Court will evaluate whether these cases need to be consolidated in due course.
7. The Court directs the Clerk to prepare a summons for Sergeant Bell. The Court directs the United States Marshal to serve the summons and the complaint, Doc. 2, on Bell without prepayment of fees and costs or security.
So Ordered.