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Tarpley v. McMeade

United States District Court, E.D. Missouri, Southeastern Division

June 10, 2019

KEVIN W. TARPLEY, Plaintiff,
v.
MICHAEL MCMEADE, et al., Defendants.

          MEMORANDUM AND ORDER

          STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on the motion of plaintiff Kevin W. Tarpley for leave to commence this civil action without prepayment of the filing fee. (Docket No. 2). While incarcerated, plaintiff has brought three or more civil actions in federal court that were dismissed as frivolous, malicious, or for failure to state a claim. Accordingly, for the reasons discussed below, the Court will deny plaintiffs motion for leave to proceed in forma pauperis and dismiss plaintiffs complaint without prejudice.

         The Complaint

         Plaintiff is currently an inmate at South Central Correctional Center in Licking, Missouri. He brings this civil action pursuant to 42 U.S.C. § 1983, naming Sheriff Michael McMeade and the Butler County Sheriffs Department as defendants. Sheriff McMeade is sued in both his official and individual capacity.

         Plaintiff states that in October of 2016, while incarcerated in the Butler County Jail, he got into a physical altercation with another inmate. (Docket No. 1 at 5). As a result of this altercation, he was placed in segregation. While in segregation, plaintiff alleges that he was not allowed to use the toilet. Accordingly, he "peed in a cup and threw it under the cell door." When Sheriff McMeade saw what plaintiff had done, he purportedly entered the cell and began hitting plaintiff on the head. Sheriff McMeade also allegedly kneed plaintiff in the back. Plaintiff adds that when this assault occurred, he was in a wheelchair and had only one leg.

         Plaintiff asserts that he was not allowed to call anyone, but did tell Sheriff Marcus Unknown and Sheriff Liz Unknown what occurred. He claims they "did nothing," yet also states that they took him to see "Dr. Tom," the "brother of Sheriff Liz." Plaintiff states that no investigation ever took place, despite the marks on him from the assault.

         Plaintiff alleges that he has "ongoing back problems" from being kneed in the back, as well as recurring migraines from being hit in the head. (Docket No. 1 at 6). He seeks $750, 000 in damages. He also wants charges filed against Sheriff McMeade.

         Discussion

         Plaintiff seeks leave to commence this § 1983 action without prepayment of the required filing fee. Because plaintiff has had three previous cases dismissed on the basis of frivolity, maliciousness, or for failure to state a claim, his motion to proceed in forma pauperis will be denied and his case dismissed without prejudice.

         A. The Three Strikes Provision of 28 U.S.C. § 1915(g)

         The Prison Litigation Reform Act of 1996 enacted what is commonly known as the "three strikes" provision of 28 U.S.C. § 1915(g). Orr v. Clements, 688 F.3d 463, 464 (8th Cir. 2012). Section 1915(g) provides in relevant part:

In no event shall a prisoner bring a civil action.. .under this section if the prisoner has, on three or more prior occasions, while incarcerated or detained in any facility, brought an action...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). This section does not apply unless the inmate litigant has three strikes at the time he files his lawsuit or appeal. Campbell v. Davenport Police Dep't, 471 F.3d 952, 952 (8thCir. 2006). Prisoners who have had three previous civil lawsuits or appeals dismissed as frivolous, malicious, or for failure to state a claim must prepay the entire filing fee. Lyon v. Krol, 127 F.3d 763, 764 (8th Cir. 1997).

         B. Plaintiffs Previous ...


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