Cox v. Woods et al

Filing 5

MEMORANDUM & ORDER denying 3 Motion for Leave to Proceed in forma pauperis. Signed by Senior Judge Thomas B. Russell on 5/28/2013. cc:counsel (KJA) Modified on 5/30/2013 to modify document type (KJA).

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH
CLAUDE COX
v.

PLAINTIFF
CIVIL ACTION NO. 5:13CV-P68-R

JOHN WOODS et al.

DEFENDANTS
MEMORANDUM AND ORDER

Plaintiff Claude Cox filed the instant pro se action. This matter is before the Court on
Plaintiff’s application to proceed without prepayment of fees (DN 3).
Section 1915 of Title 28 of the United States Code governs proceedings in forma
pauperis. This statute provides in pertinent part as follows:
(g) In no event shall a prisoner bring a civil action . . . 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). Thus, the only exception to the limitation noted in the statute 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 the instant action. Plaintiff Cox 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).
Plaintiff states no factual allegations in support of his complaint. Therefore, Plaintiff
does not allege that he is in “imminent danger of serious physical injury” such that § 1915(g)
would not apply.
Because Plaintiff is prohibited from proceeding in forma pauperis under 28 U.S.C.
§ 1915(g), IT IS ORDERED that the application to proceed without prepayment of fees (DN 3)
is DENIED. Plaintiff must pay the requisite $400.00 fee1 for the instant action within 30
days of entry of this Order. The check should 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, KY
40202-2249. Failure to pay the filing fee in full within the time allowed will result in dismissal
of the action. The Court advises Plaintiff that “[t]he 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.” In re Alea, 286 F.3d 378, 381 (6th Cir. 2002).
The Clerk of Court is DIRECTED to open an account for the payment of the filing fee.
Date:

May 28, 2013

cc:
Plaintiff, pro se
4413.010

1

Effective May 1, 2013, the fee for filing the instant action includes a $350 filing fee,
plus a $50 administrative fee, for a total fee of $400.
2