Cox v. Thompson et al

Filing 5

MEMORANDUM & ORDER denying 3 Motion for Leave to Proceed in forma pauperis. Signed by Senior Judge Thomas B. Russell on 11/9/2012. cc:counsel (KJA) Modified on 11/9/2012 to edit document type (KJA).

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH
CLAUDE COX
A/K/A LISA LEE DUKE

PLAINTIFF

v.

CIVIL ACTION NO. 5:12CV-P162-R

LADONNA THOMPSON et al.

DEFENDANTS

MEMORANDUM AND ORDER
Plaintiff Claude Cox, also known as Lisa Lee Duke, filed the instant pro se civil action.
This matter is before the Court on Plaintiff’s application to proceed without prepayment of fees
(DN 3).
Title 28, United States Code, section 1915 governs proceedings in forma pauperis and
provides, in pertinent part, as follows:
(g) In no event shall a prisoner bring a civil action or appeal a judgment in a civil
action or proceeding under this section if the prisoner 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, unless the
prisoner is under imminent danger of serious physical injury.
28 U.S.C. § 1915(g). The only exception to the limitation noted in § 1915(g) is if the prisoner is
“under imminent danger of serious physical injury.” Id.
A review of the Court’s records reveals that the criteria set forth in subsection (g) apply
to this action. Plaintiff has filed numerous civil actions while incarcerated in the Commonwealth
of Kentucky, and at least three of those actions were dismissed because they were frivolous,

malicious, or failed to state a claim upon which relief may be granted. See, e.g., Cox v. Parke et
al., Civil Action No. 3:92CV-214-S; Cox v. Combs et al., Civil Action No. 3:92CV-219-M; and
Cox v. Parke et al., Civil Action No. 3:92CV-257-S. Despite the fact that many of Plaintiff’s
actions were dismissed prior to the effective date of the Prison Litigation Reform Act and the
resulting amendments to § 1915, those actions may be counted toward the commonly called
“three strikes” provision of § 1915(g). Wilson v. Yaklich, 148 F.3d 596, 604 (6th Cir. 1998).
Further, Plaintiff does not allege that he is presently “under imminent danger of serious
physical injury.”
For these reasons, § 1915(g) prohibits Plaintiff from proceeding in forma pauperis.
IT IS THEREFORE ORDERED that the application to proceed without prepayment of
fees (DN 3) is DENIED. Plaintiff must pay the requisite $350.00 filing fee for the instant
action within 30 days from entry of this Order. The check shall be made payable to “Clerk,
U.S. District Court” and sent to the following address: Office of the Clerk, United States
District Court, Western District of Kentucky, 106 Gene Snyder U. S. Courthouse, 601 West
Broadway, Louisville, Kentucky 40202-2249.
Plaintiff is WARNED that his failure to comply with this Order within the time
allotted will result in dismissal of the action and his continued responsibility for payment of
the $350.00 filing fee. In re Alea, 286 F.3d 378, 381 (6th Cir. 2002) (“The subsequent dismissal
of the action under § 1915(g) for failure to pay that fee does not negate or nullify the litigant’s
continuing obligation to pay the fee in full.”).

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The Clerk of Court is DIRECTED to open an account for the payment of the filing
fee.
Date:

November 9, 2012

cc:

Plaintiff, pro se
Financial Section, USDC, WDKY
4413.005

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