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Ramon McGraw v. A Weekly, 14-3244 (2016)

Court: Court of Appeals for the Eighth Circuit Number: 14-3244 Visitors: 40
Filed: Jan. 12, 2016
Latest Update: Mar. 02, 2020
Summary: United States Court of Appeals For the Eighth Circuit _ No. 14-3244 _ Ramon Hosea McGraw lllllllllllllllllllll Plaintiff - Appellant v. A Weekly, Warden, Grimes Unit, ADC; Doby Algernon, Inmate, ADC #95824; Gatlin, Ms., Mental Health, Grimes Unit, ADC; Richard, Dr., Mental Health, Grimes Unit, ADC; Wizenbok, Correctional Officer 1, Grimes Unit, ADC; Justine M. Minor, Disciplinary Judge; Jada Lawrence, Director's Assistant; S Townsend, Officer; Vernon R. Robertson, Major Disciplinary Administrato
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                United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 14-3244
                       ___________________________

                             Ramon Hosea McGraw

                      lllllllllllllllllllll Plaintiff - Appellant

                                          v.

 A Weekly, Warden, Grimes Unit, ADC; Doby Algernon, Inmate, ADC #95824;
  Gatlin, Ms., Mental Health, Grimes Unit, ADC; Richard, Dr., Mental Health,
Grimes Unit, ADC; Wizenbok, Correctional Officer 1, Grimes Unit, ADC; Justine
M. Minor, Disciplinary Judge; Jada Lawrence, Director's Assistant; S Townsend,
 Officer; Vernon R. Robertson, Major Disciplinary Administrator; Ray Naylor,
                Major Disciplinary Administrator; Wendy Kelley

                    lllllllllllllllllllll Defendants - Appellees
                                     ____________

                   Appeal from United States District Court
                for the Eastern District of Arkansas - Batesville
                                 ____________

                          Submitted: January 11, 2016
                            Filed: January 12, 2016
                                 [Unpublished]
                                ____________

Before LOKEN, SMITH, and BENTON, Circuit Judges.
                           ____________

PER CURIAM.
       Inmate Ramon Hosea McGraw appeals the district court’s1 order denying leave
to proceed in forma pauperis (IFP) under 28 U.S.C. § 1915(g) (three-strikes rule), and
dismissing his 42 U.S.C. § 1983 complaint arising from a May 17, 2014 incident in
which he was attacked by inmate Doby Algernon. Having jurisdiction under 28
U.S.C. § 1291, this court affirms.

       The parties filed briefs at this court’s request.2 On appeal McGraw argues that
the district court erred in denying his IFP motion, because his allegations reflected
that he was in imminent danger. See 28 U.S.C. § 1915(g) (in no event shall inmate
bring civil action or appeal judgment in civil action if he has, on 3 or more prior
occasions, while incarcerated or detained in any facility, brought action or appeal in
federal court that was dismissed on ground that it is frivolous, malicious, or fails to
state claim, unless he is under imminent danger of serious physical injury).

       This court agrees with the district court that McGraw’s August 2014 verified
complaint and its exhibits, as well as his objections to the magistrate judge’s report,
fell short of meeting the standard for section 1915(g)’s imminent-danger exception.
See Owens v. Isaac, 
487 F.3d 561
, 563 (8th Cir. 2007) (per curiam) (reviewing de
novo district court’s interpretation and application of § 1915(g)); Martin v. Shelton,
319 F.3d 1048
, 1050 (8th Cir. 2003) (requisite imminent danger must exist when
complaint is filed, not when alleged wrongdoing occurred; specific fact allegations
of ongoing serious physical injury, or of pattern of misconduct reflecting likelihood
of imminent serious physical injury, are required to invoke exception). The

      1
       The Honorable James M. Moody, Jr., United States District Judge for the
Eastern District of Arkansas, adopting the report and recommendations of the
Honorable Jerome T. Kearney, United States Magistrate Judge for the Eastern District
of Arkansas.
      2
       This court expresses its appreciation for the assistance of the Arkansas
Attorney General in briefing this appeal although the state defendants were not
served.

                                         -2-
imminent-danger exception applies where an inmate’s sworn allegations, which were
supported by documentary evidence, indicated prison officials continued to place him
near inmates on his enemy list despite his being stabbed twice by the same inmate
enemy after first notifying the officials of his placement near his enemies. See Ashley
v. Dilworth, 
147 F.3d 715
, 717 (8th Cir. 1998) (per curiam). However, the allegations
in the instant lawsuit differ from those in Ashley. While McGraw’s district court
filings stated he had multiple inmate enemies throughout the Grimes Unit, he
identified only two: Algernon, who had attacked him on May 17 after an argument,
and Timothy Moore, who had assaulted him at another prison. McGraw did not state
he was exposed to Algernon after the May 2014 incident, or specify how he was
exposed to Moore after Moore’s July 2014 transfer to the Grimes Unit. McGraw
identified other inmates by last names or nicknames, but he indicated they were his
enemies only because they had insulted him or made one-time threats, and he gave
no indication that any inmate physically harmed him or attempted to do so after the
May 2014 incident with Algernon. See 
Martin, 319 F.3d at 1050
(general assertion
of imminent danger is insufficient to invoke imminent-danger exception to
§ 1915(g)).

     The judgment of the district court is affirmed. McGraw’s pending motions to
submit affidavits are denied.
                       ______________________________




                                         -3-

Source:  CourtListener

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