DEMOUCHETTE v. USA
Filing
6
Order of Dismissal; denying 4 Motion for Leave to Proceed in forma pauperis. Plaintiff's March 4, 2019 correspondence shall be returned unfiled. The Clerk is directed to enter judgment. Signed by Senior Judge Eric G. Bruggink. (ew) Service on parties made.
Plaintiff
appearing pro se, filed his complaint on January 31,2019,
alleging an action for unjust conviction under 28 U.S.C. $ 1495, along with
a motion to proceed informa pauperis. The motion for waiver of the filing
fee is accompanied by a declaration of plaintiff that he is aware that he is
statutorily prohibited from proceeding informa pauperis due to his previous
history of filing meritless civil actions in the federal courts. On March 4,
2019, Mr. Demouchette attempted to file a document entitled "Writ of
Mandamus" which was not docketed by the clerk's office due to there being
no provision in this court's rules for its filing. The "writ" in effect asks the
court to order the disclosure of certain documents pertaining to an alleged
1976 c,riminal indictment of plaintiff in the Western District of Louisiana.
Defendant has not yet responded to the complaint, but we need not wait for
a response because it is clear that the case must be dismissed.
Although 28 U.S.C.
$ 1915 generally allows the prosecution of
lawsuits in the federal courts by prisoners without the payment of filing fees
upon a showing of the inability to pay, 28 U.S.C. $ 1915(a) (2018), it also
prohibits proceeding without paying the filing fee if a prisoner o'has on 3 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," Id. S 1915(9). As plaintiffls declaration admits and
a cursory search of his filing history in the district courts reveals, Mr.
Demouchette is prohibited from bringing a civil action without paying the
filing fee. See, e.g., Demouchette v. LeBlanc, No. I7-0164-JJB-EWD
(Order dismissing action for failure to pay the filing fee and citing three prior
actions dismissed as frivolous or failing to state a claim) (M.D.La. July 26,
2017). Having failed to pay the fee, dismissal is appropriate given the
purpose of section 1915(g). E.g. Resendez v. United States,96 Fed. Cl.
283,287-88 (2010).
We note also that, even if dismissal for failure to pay the fee was
inappropriate, the complaint would be dismissed for lack of jurisdiction
because it does not allege the required elements of such a claim as laid out in
28 U.S.C. $ 2513. Section 2513 requires a person bringing suit under
section 1495 to allege that the claimant was acquitted or pardoned on grounds
of innocence. 28 U.S.C. $ 2513(a) (2018). Plaintiff has not claimed that
he was acquitted or pardoned, and thus the complaint does not allege a valid
action under section 1495. There is therefore no jurisdiction in this court
over plaintiff s complaint. See Grayson v. United States, l4l Ct. Cl. 866
(1958) (dismissing an action under section 1495 for lack ofjurisdiction for
failure to allege the requirements of section 2513).
Because plaintiff is not eligible to proceed informa pauperis, has not
paid the filing fee, and has brought an action that is clearly outside of our
jurisdiction, the case must be dismissed. Accordingly, the following is
ordered:
1.
Plaintiff s motion to proceed in forma pauperis is denied.
2.
The clerk's office is directed to return the document received on
March 4,2019, to plaintiff unfiled.
3.
The Clerk of Court is directed to dismiss the complaint for failure
to pay the filing fee.
Senior Judge
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