United States District Court, D. Nebraska
MR. TERRICK NOONER, Plaintiff,
STATE OF NEBRASKA, QUINN ROBERT EATON, and MS. MARNIE JENSEN, Defendants.
MEMORANDUM AND ORDER
SMITH CAMP SENIOR UNITED STATES DISTRICT JUDGE
matter is before the court on three motions filed by
Plaintiff Terrick Nooner (“Plaintiff” or
“Nooner”). (Filing Nos. 10, 11,
& 12.) On August 30, 2019, the court entered an
order (filing no. 9) granting Nooner leave to
proceed in forma pauperis (“IFP”) and directing
him to pay an initial partial filing fee of $5.20. Nooner has
not yet paid his initial partial filing fee and, thus, the
court is inclined to deny his motions without prejudice to
reassertion as premature. However, upon further review, the
court finds that its August 30, 2019 Memorandum and Order was
entered in error because Nooner has accumulated “three
strikes” under the Prison Litigation Reform Act
(“PLRA”). Therefore, the court will vacate the
prior order granting Nooner leave to proceed IFP and require
him to show cause why this case should not be dismissed
pursuant to the three strikes provision in 28 U.S.C.
§1915(g). Nooner's three motions will also be
The PLRA Three Strikes Provision
As stated in the PLRA, a prisoner cannot
bring a civil action . . . or proceeding [IFP] if the
prisoner has, on 3 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).
court takes judicial notice that the United States District
Courts for both the Eastern and Western Districts of Arkansas
have previously determined that three or more federal court
cases brought by Nooner, while a prisoner, were dismissed as
frivolous or for failure to state a claim. See,
e.g., Nooner v. Bryant, No. 1:19-CV-01014, 2019
WL 2016541 (W.D. Ark. May 7, 2019) (dismissed based on three
strikes rule); Nooner v. Dickey, No. 5:01-cv-00379,
slip op. at 3 (E.D. Ark. Jan. 14, 2002) (strike for failure
to state a claim); Nooner v. Eisele, et al., No.
4:01-cv-00498 (E.D. Ark. Aug. 16, 2001) (dismissed based on
three strikes rule); Nooner v. Fed. Bureau of
Investigation, No. 4:99-cv-00544, slip op. at 2 (E.D.
Ark. Sept. 20, 1999) (strike for failure to state a claim);
Nooner v. Camp, No. 5:98-cv-00345, slip op. at 1-2
(E.D. Ark. Aug. 20, 1998) (dismissed based on three strikes
rule). Nooner does not allege he is in imminent danger of
serious physical injury.
light of the foregoing, the court will vacate its order
granting Nooner leave to proceed IFP and give him 30 days in
which to show cause for why this case should not be dismissed
pursuant to 28 U.S.C. § 1915(g). In the alternative,
Nooner may pay the full $400.00 filing and administrative
fees. In the absence of good cause shown, or the payment of
the necessary fees, this action will be dismissed.
PLAINTIFF'S PENDING MOTIONS
issue of whether Nooner may proceed IFP in this action is not
yet resolved, the three motions he filed seeking, inter alia,
(1) sanctions against Defendants for failing to investigate
his lack of jurisdiction claim (filing no. 10), (2)
production of documents, electronically stored information,
and other discovery (filing no. 11), and (3) a
preliminary injunction against the State of Arkansas
“for a[n] immediate restraint against nuisance”
related to his allegedly unlawful confinement in Arkansas
custody (filing no. 12), are premature.
this matter may proceed, the question of Nooner's
authorization to proceed IFP must be resolved or payment of
the full $400.00 filing and administrative fees is required.
If Nooner is permitted to proceed IFP or payment is made, the
court is required to review Nooner's Complaint to
determine whether summary dismissal is appropriate.
See 28 U.S.C. § 1915(e)(2). The court must
dismiss a complaint or any portion thereof that states a
frivolous or malicious claim, that fails to state a claim
upon which relief may be granted, or that seeks monetary
relief from a defendant who is immune from such relief. 28
U.S.C. § 1915(e)(2)(B).
court has not yet conducted an initial review of Nooner's
Complaint pursuant to section 1915(e). No. discovery may take
place in this case and no sanctions, where warranted, may be
imposed on Defendants unless the court determines that this
matter may proceed to service of process. Thus, Nooner's
motions for sanctions (filing no. 10) and discovery
(filing no. 11) are denied without prejudice to
respect to Nooner's motion for a preliminary injunction,
he appears to seek an injunction transferring him out of
Arkansas custody based on the Arkansas government's
violation of his due process rights in his criminal
prosecution for theft of property and failure to investigate
sexual misconduct against Nooner while incarcerated.
(Filing No. 12.) The court finds Nooner's
request for a preliminary injunction should be denied as
Nooner does not seek an injunction against any of the named
Defendants in this action and the requested injunction bears
no relation to the allegations of Nooner's Complaint.
(SeeFiling No. 1.) In addition, Nooner's motion
fails to satisfy the standards set forth by Dataphase
Sys., Inc. v. C.L. Sys., Inc., 640 F.2d 109 (8th Cir.
Dataphase, the Eighth Circuit Court of Appeals,
sitting en banc, clarified the factors district courts should
consider when determining whether to grant a motion for
preliminary injunctive relief: (1) the threat of irreparable
harm to the movant; (2) the balance between that harm and the
injury that granting the injunction will inflict on the other
interested parties; (3) the probability the movant will
succeed on the merits; and (4) whether the injunction is in
the public interest. Id. at 114. Failure to show