Franco v. Doe et al

Filing 4

ORDER & REASONS re 3 MOTION for APPEAL/REVIEW OF MAGISTRATE JUDGE DECISION to District Court re 2 Order on Motion for Leave to Proceed in forma pauperis filed by Martin Tann Franco, Jr.: for the reasons stated, the Court AFFIRMS the magistrate judge's denial of pla's application to proceed in forma pauperis in this action. Signed by Chief Judge Sarah S. Vance on 3/19/2012.(rll, ) Modified on 3/19/2012 to edit doc type to OPINION (rll, ).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

MARTIN TANN FRANCO, JR.

CIVIL ACTION

VERSUS

NO: 12-292

JANE DOE 1 - DEPUTY CLERK OF
U.S. COURT OF APPEALS FOR THE
FIFTH CIRCUIT, ET AL.

SECTION: R(5)

ORDER AND REASONS
Before the Court is plaintiff Martin Franco’s appeal of the
magistrate judge’s February 3, 2012 Order and Reasons denying his
application to proceed in forma pauperis on his 42 U.S.C. § 1983
action.

For the following reasons, the Court AFFIRMS the

magistrate judge’s order.

I.

BACKGROUND
Plaintiff Martin Franco is currently incarcerated in the

Texas Department of Criminal Justice in Brazoria County.

On

January 30, 2012, he filed an application under 28 U.S.C. § 1915

to proceed in forma pauperis on a claim under 42 U.S.C. § 1983
against various unnamed clerks and judges at the United States
Court of Appeals for the Fifth Circuit.

In his IFP application

and complaint, Franco generally alleges a violation of his due
process rights.
Determination of Franco’s pauper status was referred
automatically to the magistrate judge under Local Rule
72.1E(B)(1) and 28 U.S.C. § 636(b).

The magistrate judge denied

plaintiff’s application to proceed as a pauper pursuant to 28
U.S.C. § 1915(g) in an Order and Reasons dated February 3, 2012.
Section 1915(g) precludes a prisoner from proceeding in forma
pauperis if he has, “on [three] 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.”

The

magistrate judge found that plaintiff has filed at least twelve
cases in Texas federal courts.1

The magistrate judge further

concluded that plaintiff failed to show that he was in imminent
danger of serious physical injury.

1

See R. Doc. 2 at 2.
2

Franco then filed a Notice of Appeal.2

He does not contest

the magistrate judge’s finding that he is not in imminent danger.
Instead, Franco asserts that because he was granted IFP status in
an earlier proceeding, he does not need to prove IFP status
again.3

II.

LEGAL STANDARD
There is some disagreement among courts over whether a

magistrate judge’s ruling on an IFP application should be treated
as a ruling on a non-dispositive pre-trial matter under 28 U.S.C.
§ 636(b)(1)(A) and reviewed for clear error, or treated as a
report and recommendation prepared under 28 U.S.C. § 636(b)(1)(B)
and thus reviewed de novo.

See Wilson v. Becker, No. 07-7157,

2008 WL 81286 (E.D. La. Jan. 7, 2008)(collecting cases).

The

Fifth Circuit touched on this issue in Donaldson v. Ducote, 373
F.3d 622 (5th Cir. 2004), and observed that a party “dissatisfied
with a magistrate judge’s findings and recommendations [regarding
an IFP application] may [] obtain relief by objecting to the
magistrate judge’s findings and recommendations, thereby
compelling the district court to review his objections de novo.”

2

R. Doc. 3.

3

R. Doc. 3 at 7.
3

Donaldson, 373 F.3d at 624.
*2 (discussing Donaldson).

See also Wilson, 2008 WL 81286, at
It is unnecessary to resolve the

conflict in this case, however, because under either standard of
review - clear error or de novo - the Court finds that
plaintiff’s application is devoid of merit.

III. DISCUSSION
Under 28 U.S.C. § 1915(g), a prisoner is barred from
bringing a civil action as a pauper if he has, on three or more
prior occasions while in prison, brought an action or appeal in
federal court that was dismissed on the grounds that it is
frivolous, malicious, or fails to state a claim.

This so-called

“three strikes” rule, however, does not apply if the prisoner “is
under imminent danger of serious physical injury.”

Id.

Here,

there is no dispute that Franco is not in any physical danger.
Moreover, there is no dispute that Franco has filed at least
three civil complaints that were dismissed as frivolous.

Franco

cites no legal basis - and the Court could fine none - to support
his claim that his application to proceed in forma pauperis
should be granted because it had been granted in the past.
Accordingly, the magistrate judge correctly determined that the
three-strikes rule bars Franco’s application to proceed in forma
pauperis.
4

IV.

CONCLUSION
For the foregoing reasons, the Court AFFIRMS the magistrate

judge’s denial of plaintiff’s application to proceed in forma
pauperis in this action.

New Orleans, Louisiana, this 19th day of March, 2012.
__

_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

5