Ayers v. Norris, PB-C-97-193.

• Decision Date: 31 March 1999
• Docket Number: No. PB-C-97-193.,PB-C-97-193.
• Citation: 43 F.Supp.2d 1039
• Parties: Wendell R. AYERS, Plaintiff, v. Larry NORRIS, Director, Arkansas Department of Correction; Leroy Brownlee, Chairman, Arkansas Post Prison Transfer Board, Defendants.
• Court: U.S. District Court — Eastern District of Arkansas

43 F.Supp.2d 1039

Wendell R. AYERS, Plaintiff, v. Larry NORRIS, Director, Arkansas Department of Correction; Leroy Brownlee, Chairman, Arkansas Post Prison Transfer Board, Defendants.

No. PB-C-97-193.

United States District Court, E.D. Arkansas, Pine Bluff Division.

March 31, 1999.

COPYRIGHT MATERIAL OMITTED

Wendell R Ayers, Calico Rock, AR, plaintiff pro se.

Christopher Richard Heil, Lowber Hendricks Law Firm, Little Rock, AR, for Wendell R Ayers, plaintiff.

Darnisa C. Evans Johnson, Arkansas Attorney General's Office, Little Rock, AR, David B. Eberhard, Department of Community Punishment, Little Rock, AR, for Larry Norris, Director, Arkansas Department of Correction, defendant.

David B. Eberhard, Dept. of Community Punishment, Little Rock, AR, for Leroy Brownlee, defendant.

MEMORANDUM OPINION

EISELE, District Judge.

By a separately issued Order, the Court denied Defendants' Motion to Dismiss and granted Defendants' Motion for Extension of Time to Respond to Plaintiff's Discovery Requests for Defendants Norris and Brownlee. This Memorandum Opinion sets forth the reasoning behind the dispositions of said motions.

I. Background

Mr. Ayers is an inmate in the Arkansas Department of Correction following a 1990 conviction in Johnson County Circuit Court on the charge of second-degree murder. Mr. Ayers appealed his conviction in state court and unsuccessfully sought federal habeas corpus relief.

On April 28, 1997, Mr. Ayers filed his pro se Application to Proceed Without Prepayment of Fees and Affidavit and his pending Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Thereafter, Mr. Ayers was granted permission to proceed in forma pauperis. Initially, he sought declaratory and injunctive relief for alleged violations of due process and equal protection rights during the parole hearing process.

On May 21, 1997, Defendant Norris moved for dismissal pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, arguing that Mr. Ayers was required to seek permission from the Eighth Circuit Court of Appeals before bringing this successive application for habeas relief.

By Order dated March 11, 1998, the Court denied Defendant Norris's motion to dismiss for lack of jurisdiction, dismissed Mr. Ayers's equal protection claims pursuant to Rule 12(b)(6), determined that Mr. Ayers's petition should be construed as a complaint under 42 U.S.C. § 1983, and determined that Mr. Ayers was entitled to an appointed attorney.

In his Amended Complaint filed April 30, 1998, Mr. Ayers contends that the Arkansas statutes and regulations governing parole create a liberty interest and that conduct of the defendants deprived him of his Fourteenth Amendment due process rights in his parole proceedings. Specifically, Mr. Ayers asserts that the Post Prison Transfer Board has unconstitutionally denied him access to documents, files, and other information used by it in determining Mr. Ayers's eligibility for parole, the opportunity to present evidence on his behalf, and an explanation of its parole decision such that an average person could understand the decision of denial without the use of "boilerplate" reasons. He seeks declaratory and injunctive relief to remedy these asserted injustices.

On June 30, 1998, Defendants Larry Norris and Leroy Brownlee¹ filed the instant Motion to Dismiss pursuant to section 804 of the Prison Litigation Reform Act ("PLRA"), 28 U.S.C. § 1915(g), commonly known as the "three strikes" provision of the PLRA, which prevents a prisoner from bringing a civil action in forma pauperis

if the prisoner has, on three or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal 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) (Supp.1998).² Defendants state that, prior to the instant action, Mr. Ayers has had four actions dismissed for being frivolous or malicious. Defendants further state that Mr. Ayers is not under imminent danger of serious physical injury.

Mr. Ayers responded, making several arguments against dismissal. First, although admitting that he has had four previous actions in federal court dismissed while he was incarcerated, Mr. Ayers denies that all of these dismissals are of the type contemplated in section 1915(g). Second, he argues that, because it was the Court, not he, who determined his action to be a civil action, he should not be held to section 1915(g). Third, Mr. Ayers asserts that section 1915(g) does not require dismissal of in forma pauperis actions but rather requires the plaintiff-prisoner to pay the filing fee.³ Finally, Mr. Ayers contends that section 1915(g) is an unconstitutional infringement on his fundamental right of access to the courts.

II. Discussion

A. Mr. Ayers's Previous Actions

On August 14, 1992, Mr. Ayers filed his first in forma pauperis action against Lincoln County, Arkansas, John Doe, Circuit Judge, and Vera Reynolds, Circuit Clerk, alleging constitutional violations pursuant to 42 U.S.C. § 1983. See Ayers v. Lincoln County, et al., No. PB-C-92-519 (E.D.Ark. Aug. 14, 1992). In dismissing Mr. Ayers's case on September 30, 1992, the Court found that the Complaint was lacking in merit and must be considered frivolous.

On April 5, 1993, Mr. Ayers filed his second in forma pauperis action against Fred D. David, III and Maxie G. Kizer alleging constitutional violations pursuant to 42 U.S.C. § 1983. See Ayers v. Davis, et al., No. PB-C-93-236 (E.D.Ark. Apr. 5, 1998). In his Proposed Findings and Recommendations, the Magistrate Judge wrote, "plaintiff's complaint sets forth no arguable legal theory or facts which are actionable, and should be dismissed." Proposed Findings and Recommendations, Apr. 8, 1993, at 3. By Order dated April 30, 1993, the Court approved and adopted the Magistrate's Findings and Recommendations and accordingly dismissed Mr. Ayers's complaint. On July 14, 1993, the Eighth Circuit affirmed this Court's decision.

On November 21, 1994, Mr. Ayers filed his third in forma pauperis action against Vera Reynolds alleging constitutional violations pursuant to 42 U.S.C. § 1983. See Ayers v. Reynolds, No. PB-C-94-716 (E.D.Ark. Nov. 21, 1994). In his Findings and Recommendation, the Magistrate Judge wrote, "Plaintiff's complaint sets forth no arguable legal theory or facts which are actionable, and should be dismissed." Findings and Recommendation, Dec. 1, 1994, at 2. By Order dated December 19, 1994, the Court approved and adopted the Magistrate's Findings and Recommendation and accordingly dismissed Mr. Ayers's complaint. On July 26, 1995, the Eighth Circuit affirmed this Court's decision.

On February 9, 1996, Mr. Ayers filed his fourth in forma pauperis action against M.C.I., alleging constitutional violations pursuant to 42 U.S.C. § 1983. See Ayers, et al. v. M.C.I., No. PB-C-96-74 (E.D.Ark. Feb. 9, 1996). In his Findings and Recommendation, the Magistrate Judge wrote, "Plaintiffs' allegations, even if true, do not rise to the level of a constitutional violation. ... [T]he court finds that plaintiff's complaint sets forth no arguable legal theory or facts which are actionable, and should be dismissed." Findings and Recommendation, Mar. 8, 1996, at 2. By Order dated March 26, 1996, the Court approved and adopted the Magistrate's Findings and Recommendation and accordingly dismissed Mr. Ayers's complaint.

The Court further notes that each of Mr. Ayers's previous in forma pauperis proceedings was dismissed by the Court sua sponte before any responsive pleadings were ever filed by any of the defendants.

B. Mr. Ayers's Present Action

Mr. Ayers originally filed this action as a petition for writ of habeas corpus under 28 U.S.C. § 2254. However, the Court later determined that Mr. Ayers's claims are not cognizable on a section 2254 petition for writ of habeas corpus but that they may be cognizable claims under 42 U.S.C. § 1983. Section 1915(g) limits a prisoner's ability to bring a civil action. Mr. Ayers argues that his present action should not be deemed a "civil action" as contemplated under section 1915(g) because it was the Court, not he, who determined that his action was a civil action.

The Court must agree with the defendants that "Plaintiff cannot avoid the effects of the PLRA by mislabeling pleadings." Defendants' Reply at ¶ 2. Simply put, the relief sought by Mr. Ayers cannot be obtained in a section 2254 petition for writ of habeas corpus, but his claims may be cognizable as a civil action under 42 U.S.C. § 1983. Rather than dismissing Mr. Ayers's 2254 petition, the Court gave him the benefit of the doubt and allowed him to amend his complaint to allege a cause of action under section 1983. Now, Mr. Ayers argues that he should benefit doubly from the Court having "converted" his action into a civil action, namely that he should be allowed to proceed with his case under section 1983 and that his case should not be treated as a civil action under section 1915(g). The Court regards substance over form, and therefore the claims pursued by Mr. Ayers constitute a civil action for purposes of section 1915(g). See Lyon v. Krol, 127 F.3d 763 (8th Cir. 1997) (considering a section 1983 action as a civil action under section 1915(g)); Carson v. Johnson, 112 F.3d 818, 820-21 (5th Cir.1997) (reaching same conclusion).

C. Applicability of 28 U.S.C. § 1915(g)

The Court agrees with the defendants that section 1915(g) applies to Mr. Ayers's present action. First, Mr. Ayers is proceeding in forma pauperis in the instant civil action. Second, Mr. Ayers has previously filed four civil actions in which he proceeded in forma pauperis, and all four actions were dismissed on the grounds that they were frivolous.⁴ Mr. Ayers disputes that these actions were frivolous, but the Court must defer to the...