Philpott v. Sebastian County Sheriff's Department et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
ROBERT PHILPOTT 	PLAINTIFF
v. 	Case No. 2:25-CV-02141-DCF
SEBASTIAN COUNTY SHERIFF’S OFFICE, et. al. 	DEFENDANTS
MEMORANDUM OPINION AND ORDER
The Court has received a Report and Recommendation (Doc. 26) from
Magistrate Judge Mark E. Ford, and Plaintiff timely filed his Objection (Doc.
27). The matter is now ripe for consideration.
After 	careful 	review, 	the 	Court 	concludes 	that 	the 	Report 	and
Recommendation should be, and hereby is, approved and adopted in all respects
and in its entirety as this Court’s findings.
Plaintiff Robert Philpott, proceeding pro se, has failed to pay his filing fee
after his in forma pauperis (IFP) status was revoked based on the “three strikes
rule,” which states that a prisoner may not obtain IFP status when three of his
previous actions were dismissed as frivolous, malicious, or for failing to state a
claim. See 28 U.S.C. § 1915(g). While an exception exists for those in imminent
danger of serious physical injury, Plaintiff has not shown that this exception
applies in his case. 	As such, the Magistrate Judge has recommended this case
be DISMISSED WITHOUT PREJUDICE. The Court agrees.
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I. 	BACKGROUND
Plaintiff filed his complaint on November 3, 2025, seeking relief under 42
U.S.C. § 1983 based on an alleged sexual assault perpetrated against him by the
Defendants while he was housed in an adult detention center in Sebastian County
Jail when he was 15 years old in 1997. 	(Doc. 1). 	While he was granted IFP
status that same day (Doc. 3), it was later determined that the three strikes rule
applied, and his IFP status was revoked (Doc. 25). Plaintiff was ordered to pay
the filing fee of $405.00 by February 19, 2026, which he did not do. Instead, on
March 27, 2026, he filed his Objection to the Magistrate Judge’s Report and
Recommendations (R and R) in this case. (Doc. 27).
Plaintiff argues that his case should proceed despite his failure to pay the
filing fee because the three strikes rule that caused his IFP status to be revoked
is unconstitutional. 	(Doc. 27). 	Alternatively, Plaintiff requests his case be
remanded for adjudication in state court. (Id.). After careful consideration, the
Court concludes that Plaintiff’s Objection should be, and hereby is, overruled.
II. 	DISCUSSION
A pro se litigant is not excused from complying with substantive and
procedural law. Burgs v. Sissel, 745 F.2d 526, 528 (8th Cir. 1984). Under Local
Rule 5.5(c)(2), pro se litigants are expected to be familiar with and follow the
Federal Rules of Civil Procedure, which warn that a case may be dismissed for
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a plaintiff’s failure to prosecute his case or for a failure to comply with court
orders. 	Fed. R. Civ. P. 41(b). 	Plaintiff essentially insists the Court allow this
case to proceed on the merits despite his failure to obey the Court’s Order to pay
the filing fee and, therefore, properly prosecute this matter. 	(Doc. 27). 	The
Court declines to do so.
Other than merely mentioning the Eighth Amendment, Plaintiff provides
no support for his argument that the three strikes rule and the Prison Litigation
Reform Act (PLRA), 28 U.S.C. § 9115(g), are unconstitutional. 	“Section
1915(g) applies only to civil actions, and indigent inmates are not denied IFP
status for potentially nonfrivolous civil claims unless and until they file three
meritless suits.” 	Higgins v. Carpenter, 258 F.3d 797, 800 (8th Cir. 2001). The
indigent inmate risks “being denied IFP status for future nonfrivolous § 1983
actions” when he chooses “to continue filing frivolous, malicious, and meritless
suits after receiving notice of dismissals that would count as § 1915(g) strikes.”
Id. Thus, it is the indigent inmate who controls whether the three strikes rule is
applied to him. 	Id. 	In addition, Section 1915 does not close the courthouse
doors to frequent filers like Plaintiff because he can still file his suit by paying
the full filing fee. See Ashley v. Dilworth, 147 F.3d 715, 716-17 (8th Cir. 1998)
(per curium). He chose not to do so here.
Because Plaintiff has already filed suit about this matter in state court, his
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alternative request to remand this case to state court is moot. 	“Federal district
courts have original jurisdiction over Section 1983 claims, notwithstanding the
fact that they share jurisdiction with the courts of the state in which they sit.”
Williams v. Ragnone, 147 F.3d 700, 702 (8th Cir. 1998). While this Court lacks
discretion to remand a Section 1983 claim based solely on a plaintiff’s
preference for state court, it does not bar a plaintiff from filing suits in other
courts. And Plaintiff appears to have done so here. (Doc. 27).
III. 	CONCLUSION
For 	the 	foregoing 	reasons, 	the 	Court 	finds 	proper 	the 	Report 	and
Recommendation (Doc. 26) and overrules Plaintiff’s Objection (Doc. 27). 	As
such, 	the 	Court 	ADOPTS 	IN 	ITS 	ENTIRETY 	the 	Report 	and
Recommendation of the Magistrate Judge. 	Accordingly, Plaintiff’s case is
DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED this 7th day of May 2026.
/s/David Clay Fowlkes
DAVID CLAY FOWLKES
UNITED STATES DISTRICT JUDGE
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