DEMARIO WALKER A/K/A DEMARIO D. WALKER A/K/A DEMARIO DONTEZ WALKER APPELLANT
BRYAN A. BAILEY, JIMMY RANDOLPH SPEARS, JAMES RUTLAND, ALBERT BOUNDS, MARK THOMPSON, RANKIN COUNTY BOARD OF SUPERVISORS, RANKIN COUNTY JAIL, AMANDA THOMPSON, EDDIE THOMPSON, GEORGE SCHWINDLING AND QUALITY HEALTHCARE APPELLEES
OF JUDGMENT: 03/23/2017
COUNTY CIRCUIT COURT HON. STEVE S. RATCLIFF III JUDGE.
ATTORNEY FOR APPELLANT: DEMARIO WALKER (PRO SE)
ATTORNEYS FOR APPELLEES: ANTHONY SCHMIDT, MARK THOMPSON (PRO
SE), GEORGE SCHWINDLING (PRO SE)
GRIFFIS, P.J., BARNES AND GREENLEE, JJ.
Demario Walker appeals the circuit court's sua sponte
dismissal of his civil complaint pursuant to Mississippi Code
Annotated section 47-5-76(1) (Rev. 2015). We find the circuit
court's dismissal was premature, but nonetheless proper.
Accordingly, we affirm.
AND PROCEDURAL HISTORY
On May 19, 2016, Walker, while an inmate in the Rankin County
jail, filed a pro se civil complaint in the Circuit Court of
Rankin County against Bryan Bailey, the Rankin County
sheriff; Jim Spears, James Rutland, and Albert Bounds, Rankin
County jail administrators and shift lieutenants; the Rankin
County Board of Supervisors; the Rankin County jail; and Mark
Thompson, a fellow Rankin County inmate. Walker alleged that
while in the custody of the Rankin County jail, he was
sexually assaulted by Thompson. He claims the various Rankin
County officials failed to maintain a safe and secure
environment, failed to protect him, failed to provide
adequate supervision, and failed to implement and maintain
adequate health care.
Summonses were issued and subsequently served upon the
defendants. After no answers were filed, on September
1, 2016, Walker requested the circuit clerk to enter a
default under Mississippi Rule of Civil Procedure 55(a).
On September 20, 2016, Walker filed an amended complaint
naming additional Rankin County jail officials, Quality
Healthcare, and a second inmate as defendants. Walker again
claimed a failure to supervise and maintain a safe and secure
environment, and a failure to provide adequate health care.
As to the second inmate, Walker claimed the inmate sexually
harassed him, attempted to sexually assault him, stalked him,
and attempted to expose him to Hepatitis C. Summonses were
subsequently issued to the newly named defendants.
On September 27, 2016, the circuit clerk entered a default
pursuant to Rule 55(a) against Bailey, Spears, Rutland, and
Bounds. Walker then moved for a default judgment. The circuit
court set the motion for a default judgment for hearing.
However, no hearing occurred. Instead, on March 23, 2017, the
circuit court entered an order of dismissal with prejudice.
The circuit court found Walker had previously filed numerous
civil actions, and had had three or more dismissed as
frivolous or for failing to state a claim upon which relief
may be granted. The circuit court further found Walker had
been moved to a different facility and was not under imminent
danger of serious physical injury. As a result, the circuit
court dismissed Walker's complaint with prejudice
pursuant to section 47-5-76(1).
Walker timely appealed and was granted leave to appeal in
forma pauperis. On appeal, Walker claims the circuit court
erroneously dismissed his civil complaint.
We first note that the appellees failed to file a brief as
outlined in Mississippi Rule of Appellate Procedure 31(b). In
such instances, this Court has two options:
First, we may take the appellee's failure to file a brief
as a confession of error and reverse. This option is favored
when the record is complicated or of large volume and the
case has been thoroughly briefed by the appellant with apt
and applicable citation of authority so that the brief makes
out an apparent case of error. However, if the record can be
conveniently examined and such examination reveals a sound
and unmistakable basis or ground upon which the judgment may
be safely affirmed, we may disregard the appellee's error
Poole v. Walton, 214 So.3d 1064, 1066 (¶5)
(Miss. Ct. App. 2016). Here, examination of the record shows
the judgment can be affirmed.
Pursuant to section 47-5-76(1),
[a]n inmate shall not bring a civil action or appeal a
judgment in a civil action or proceeding in forma pauperis if
the prisoner has, on three (3) or more prior occasions, while
incarcerated or detained in any facility, brought an action
or appeal in a court that was dismissed on the grounds that
it was frivolous, malicious, or failed to state a claim upon
which relief may be granted, unless the prisoner is under
imminent danger of serious physical injury.
record shows that Walker, an inmate, has, on three or more
prior occasions, while incarcerated or detained in a
facility, brought an action in a court that was dismissed on
the grounds that it was frivolous or malicious, or failed to
state a claim upon which relief may be granted. Indeed,
Walker has a long history of filing frivolous lawsuits.
Nine years ago, the Fifth Circuit noted that "Walker
ha[d] already been informed that he ha[d] accumulated three
strikes under 28 U.S.C. § 1915(g)," the federal
"three strikes" rule, which is nearly identical to
Mississippi Code Annotated section 47-5-76(1). Walker
v. Mississippi Parole Bd., 333 Fed.Appx. 843, 845
(5th Cir. 2009) (citing Walker v. Norwood, No.
3:08-cv-275-TSL-JCS, 2009 WL 387337, at *1 (S.D.Miss. Feb.13,
2009)). As far back as 2010, this Court considered
sanctioning Walker "for his repetitive, frivolous
findings" but declined to do so "at [that]
time." Walker v. State, 35 So.3d 555, 560
(¶21) (Miss. Ct. App. 2010). In a subsequent case, we
noted that Walker had "filed over forty non-habeas
lawsuits for perceived mistreatment while incarcerated."
Walker v. Allen, 119 So.3d 1111, 1112 (¶1)
(Miss. Ct. App. 2011). One of the cases that the circuit
judge cited, Walker v. United States, No.
08-CV-3025(ENV), 2008 WL 3851589 (E.D.N.Y. Aug. 18, 2008),
was dismissed as frivolous because Walker falsely alleged
that he had traveled to New York in 2007, despite the fact
that he had been incarcerated in Mississippi since 2003. No
doubt, the circuit judge could have found many other
frivolous suits filed by Walker on Westlaw or Public Access
to Court Electronic Records (PACER), the federal courts'
online case information system. A search of PACER shows about
100 federal cases or appeals that Walker has filed, and this
Court's online docket lists fifty-seven state appeals,
mandamus petitions, et cetera, that he has filed. In short,
it is not surprising that Walker's history of filing
frivolous lawsuits eventually came to the attention of the
There is nothing wrong with a circuit court acting sua sponte
to enforce the three-strikes rule. See, e.g.,
Harris v. City of New York, 607 F.3d 18, 23 (2d Cir.
2010) (applying the federal three-strikes rule). A
"compelling purpose" of the three strikes rule is
to give courts "greater power to protect their dockets
from meritless lawsuits." Id. The court need
not wait for a defendant to raise the issue. It was entirely
proper for the circuit court in this case to do so on its own
Additionally, the record shows no evidence that Walker was
"under imminent danger of serious physical injury."
Miss. Code Ann. § 47-5-76(1). "[F]requent
filers" like Walker "sometimes allege that they are
in imminent danger so they can avoid paying a filing
fee." Ciarpaglini v. Saini, 352 F.3d 328, 330
(7th Cir. 2003). However, "a past injury that has not
recurred" does not satisfy the "imminent
danger" exception to the three-strikes rule.
Id. "[A] prisoner must allege a present
imminent danger, as opposed to a past danger, to proceed
under [the exception]." Brown v. Johnson, 387
F.3d 1344, 1349 (11th Cir. 2004). "[T]he requisite
imminent danger of serious physical injury must exist at
the time the complaint . . . is filed, not when the
alleged wrongdoing occurred." Martin v.
Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003) (emphasis
added). Walker failed to allege any such present imminent
danger. His complaint alleged an assault by another inmate
and inactions by officials at the Rankin County Jail. The
complaint clearly stated that "[a]ll events occurred in
or at the [R]ankin County Jail." However, the
certificates of service for the original complaint and
amended complaint and the summonses filled out by Walker show
that he was at the Central Mississippi Correctional Facility
(CMCF) in Pearl when he filed the original complaint and the
amended complaint. Walker did not allege that he was in any
imminent danger at CMCF. Therefore, the imminent-danger
exception to the three-strikes rule does not apply.
Even though Walker has had three or more cases dismissed as
frivolous or malicious, or for failing to state a claim,
section 47-5-76(1) does not preclude him from bringing a
civil action; it simply precludes him from bringing a civil
action in forma pauperis. See id.
There is no indication in the record that Walker's pauper
status was addressed or determined by the circuit court when
this case was filed. Although Walker requested and was
granted leave to appeal in forma pauperis, there is
no such request or order in the record regarding his ability
to proceed in the trial court in forma pauperis. In
fact, Walker did not include a pauper's affidavit with
his complaint, as required by Mississippi Code Annotated
section 11-53-17 (Rev. 2012),  and he asserts that he
"never requested to proceed [in forma pauperis] except
on appeal." Walker further asserts neither the circuit
clerk nor the circuit judge "directed or required [him]
to pay" or "inquired into [his] (1) willin[gn]ess
or (2) ability to pay . . . except on appeal." However,
Walker admits he has not paid any fees associated with this
civil action. Thus, it appears Walker was allowed to bring,
and proceed with, his civil action in the trial court in
forma pauperis without a pauper's affidavit or a court
order, and without any inquiry as to his financial ability to
Without the necessary pauper's affidavit or a judicial
order, Walker should not have been allowed to bring or
proceed with his civil action in the trial court in forma
pauperis. As noted by Walker, "it is implied that [he]
was allowed to proceed in forma pauperis by the court
allowing it to go as far as being filed and having process
issued." However, such implication or assumption of
pauper status is insufficient; there must have been some
inquiry or determination of indigency.
Because there is no indication in the record that the circuit
court ever inquired of or determined Walker's financial
status, it was premature to dismiss his civil action under
section 47-5-76(1). However, the record shows Walker
submitted documentation that showed he was unable to afford
the costs associated with his appeal. Specifically, the
documentation showed Walker has no income or money in
checking or savings, and has had an average monthly balance
of zero dollars. Clearly, if Walker cannot afford to appeal,
he could not afford to proceed in the circuit court with his
civil action. Thus, while the circuit court should have
addressed and determined Walker's pauper status
before dismissing his case pursuant to section
47-5-76(1), we find the circuit court's dismissal was
nevertheless proper, as the record shows Walker is unable to
pay the necessary costs and fees.
We note that the circuit court dismissed this action with
prejudice. "A dismissal with prejudice indicates a
dismissal on the merits." Jackson v. Bell, 123
So.3d 436, 439 (¶7) (Miss. 2013). Since the circuit
court did not address or consider the merits of Walker's
claims, the dismissal should have been without prejudice.
Finally, as previously noted, the circuit court granted
Walker's request to appeal in forma pauperis. However,
"[t]he right to proceed in forma pauperis in civil cases
does not extend beyond the initial trial of the matter."
Bessent, 974 So.2d at 931-32 (¶11). While
section 11-53-17 allows "persons who are truly indigent
[to] proceed in civil actions as paupers[, ] . . . this
statute authorizes in forma pauperis proceeding[s] in civil
cases at the trial level only." Nelson v. Bank of
Miss., 498 So.2d 365, 365 (Miss. 1986). Also, section
47-5-76(1) specifically precludes Walker from appealing the
circuit court's judgment in forma pauperis. Thus, Walker
should never have been allowed to appeal in forma pauperis.
Unfortunately, the citizens of Rankin County are now unduly
obligated to pay Walker's court costs associated with
this appeal. See Bessent, 974 So.2d at 932
(¶12) ("Bessent never should have been allowed to
appeal his claims under the Mississippi Tort Claims Act in
forma pauperis. The citizens of Hinds County are now unduly
obligated to pay Bessent's court costs incident to his
claim for damages.").
We find the circuit court erred in failing to address
Walker's financial status before dismissing his civil
action under section 47-5-76(1). However, "[a]n
appellate court may affirm a [circuit] court's decision
if the correct result is reached, even if the [circuit] court
reached the result for the wrong reasons." Boone v.
State, 148 So.3d 377, 379 (¶7) (Miss. Ct. App.
2014). It would be a waste of ...