Turner v. Watson et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
COREY M. TURNER 	PLAINTIFF
v. 	Civil No. 6:25-cv-06022-SOH-MEF
SHERIFF JASON WATSON
(Clark County, Arkansas); and
ADMINISTRATOR BRIAN WINGFIELD
(Clark County Detention Center) 	DEFENDANTS
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This is a civil rights action filed under 42 U.S.C. § 1983. Pursuant to the provisions of 28
U.S.C. §§ 636(b)(1) and (3), the Honorable Susan O. Hickey, Chief United States District Judge,
referred this case to the undersigned for the purpose of making a Report and Recommendation.
Currently before the Court is the issue of Plaintiff’s eligibility to proceed in forma pauperis (IFP).
I. 	BACKGROUND
Plaintiff filed his Complaint and Motion to Proceed IFP on February 19, 2025. (ECF No.
1, 2). That same day, the Court entered an Order noting that Plaintiff is ineligible to proceed IFP
under the three-strikes provision of 28 U.S.C. § 1915(g). (ECF No. 3). Plaintiff was given until
March 17, 2025, to advise the Court why he does not believe either of the cases listed in the Order
constituted strikes, or, in the alternative, why the three-strikes rule does not apply to this case.
(Id.).
Plaintiff filed a Response on February 28, 2025. (ECF No. 5). He filed a Notice of Address
Change on March 12, 2025, stating that he had been transferred to the Arkansas Division of
Correction Ouachita River Unit. (ECF No. 7). He further states: “Any decision and order
concerning the IFP application being granted or denied, I have not received.” (Id.). Based on that
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statement, the Court entered a second Order directing Plaintiff to file a Response concerning his
IFP status. 	(Id. at 8). 	On March 27 and 28, 2025, mail sent to Plaintiff was returned as
undeliverable. 	(ECF Nos. 9, 10). 	All mail was resent to the Arkansas Division of Correction.
(Id.). On April 4, 2025, Plaintiff filed a Response concerning his IFP status. (ECF No. 11).
Plaintiff’s Complaint alleges that he was injured while incarcerated in the Clark County
Detention Center (“CCDC”). (ECF No. 1). He alleges he is disabled and fell in the shower on
June 3, 2024. 	(Id. at 4). 	He alleges he fell because it was not equipped with equipment for
handicapped inmates, and lacked handrails, mats, or a shower chair. 	(Id.). 	He was knocked
unconscious by the fall and “woke up” to see Defendant Wingfield and Deputy Melanie, as well
as other inmates, looking down at him. (Id.). He alleges the inmates helped him off the floor and
into his wheelchair, and then helped him get into his bunk. (Id.). He says he was denied medical
care for five days, and when he was eventually taken to the Arkadelphia emergency room he was
diagnosed with concussion, acute pain of the left knee and shoulder. (Id.). Plaintiff alleges he had
undergone a full knee replacement of his left knee prior to being detained in CCDC. (Id.). Plaintiff
alleges he fell in the shower again a few days later when he was transferring himself from his
wheelchair to the regular chair that had been placed in the shower. (Id. at 5). He cut his arm on
this occasion. He was again not taken for immediate professional medical care. Instead, jailers
cleaned and dressed the cut on his arm in the hallway. (Id.). Plaintiff does not allege any further
injuries.
Both of Plaintiff’s Reponses state that he was in imminent danger of suffering serious
bodily harm at the time he filed his Complaint because he is disabled, was housed in CCDC when
he filed, and CCDC is not equipped for him to reside there safely. (ECF Nos. 5, 11). He notes
that he has received settlements from CCDC in the past for litigation about the inadequate
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accommodations and subsequent serious injuries. 	(ECF Nos. 5 at 1). 	In his second Response,
Plaintiff indicates that he was transferred to the ADC on February 28, 2025. (ECF No. 11 at 2).
Plaintiff seeks compensatory damages. (Id. at 7.). He also seeks a Court Order requiring
CCDC to become complaint with the Americans with Disabilities Act to “meet the needs and
accommodations of those held with special needs and disabilities.” (Id.).
II. 	ANALYSIS
As set forth above, Plaintiff was given the opportunity to establish why § 1915(g) does not
apply to this action. 	In his Responses, he argues that his incarceration in CCDC at the time he
filed his Complaint establishes that he was under threat of imminent physical injury.
The PLRA contains a “three strikes” provision, 28 U.S.C. § 1915(g), which limits the
ability of a prisoner, who has filed at least three claims that have been dismissed as frivolous,
malicious, or for failure to state a claim, to obtain IFP status. This provision has commonly become
known as the “three strikes rule” or the “three strikes provision.” The Court is aware that Plaintiff
has filed at least three cases which were dismissed as frivolous, malicious, or for failure to state a
claim: (1) Turner v. Cabe, Civil No. 6:11-cv-06056 (dismissed Nov. 10, 2011); (2) Turner v.
Bethell, Civil No. 6:19-cv-6105 (dismissed Nov. 18, 2019); and (3) Turner v. Turner, Civil No.
6:19-cv-06122 (dismissed March 25, 2020).
A plaintiff who has at least three strikes may still proceed IFP if he is “under imminent
danger of serious physical injury.” See 28 U.S.C. §1915(g) (providing that three-strikers should
be granted permission to proceed IFP if they are “under imminent danger of serious physical
injury”). The Eighth Circuit has explained that the imminent danger exception to section 1915(g)
applies only if the prisoner alleges that he is in imminent danger “at the time of filing,” and that
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“[a]llegations that the prisoner has faced imminent danger in the past are insufficient.” Ashley v.
Dilworth, 147 F.3d 715, 717 (8th Cir. 1998). Further, the Eighth Circuit has emphasized:
the exception focuses on the risk that the conduct complained of
threatens continuing or future injury, not on whether the inmate
deserves a remedy for past misconduct. 	By using the term
“imminent,” Congress indicated that it wanted to include a safety
valve for the “three strikes” rule to prevent impending harms, not
those harms that had already occurred.
Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003) (cleaned up). Thus, to invoke the imminent
danger of serious physical injury exception, an inmate must provide “specific fact allegations of
ongoing serious physical injury, or of a pattern of misconduct evidencing the likelihood of
imminent serious physical injury.” 	(Id.). 	Conclusory and general assertions are insufficient to
trigger this exception to § 1915(g). (Id.).
Plaintiff has failed to provide such specific factual allegations. Instead, he alleges he was
injured in a shower fall on June 3, 2024, and that he fell again a few days later. 	He filed his
Complaint in this case on February 19, 2025. 	Between June 3, 2024, and February 19, 2025,
Plaintiff identifies no other injuries. He also provides no specific facts as to how CCDC posed an
ongoing threat of serious physical injury. 	His conclusory and general allegations that CCDC is
not suited for disabled or handicapped inmates, and the existence of past injuries, are insufficient
to invoke the imminent serious physical injury exception. The Court further notes that Plaintiff
was transferred to the ADC on February 28, 2025, just nine days after he filed this Complaint.
Thus, even if CCDC did pose an imminent threat, he is no longer under that threat, and there is no
possibility of impending harm from CCDC. Plaintiff is, therefore, not eligible for the imminent
danger of serious physical injury exception for his three-strike status.
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III. 	CONCLUSION
Accordingly, it is RECOMMENDED that Plaintiff’s Motion to Proceed IFP (ECF No. 2)
be DENIED.
The parties have fourteen (14) days from receipt of the Report and Recommendation
in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely
objections may result in waiver of the right to appeal questions of fact. 	The parties are
reminded that objections must be both timely and specific to trigger de novo review by the
district court.
DATED this 16th day of May 2025.
/s/
Mark E. Ford
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
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