Wetzel v. Prieto et al
Filing
9
ORDER AND REASONS DENYING 6 Motion for Leave to Proceed in forma pauperis. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 6/7/2016. (my)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ANDREW D. WETZEL
CIVIL ACTION
VERSUS
NO. 16-5482
MALISE PRIETO ET AL.
SECTION “H”(2)
ORDER AND REASONS
Plaintiff, Andrew D. Wetzel, is a prisoner currently incarcerated in the David
Wade Correctional Center (“DWCC”) in Homer, Louisiana.1 He is a frequent filer of
frivolous lawsuits in the federal courts.
Wetzel filed the instant complaint pursuant to 42 U.S.C. § 1983 against Malise
Prieto, the Clerk of Court in St. Tammany Parish, St. Tammany Parish Judicial
Administrator Adrienne Stroble and three “John Doe” sheriff’s deputies from Jefferson
Parish. He alleges that defendants Prieto and Stroble failed to file documents and
motions he tendered as proof that he is housed with an “offender” who has caused him
harm at the prison. He further claims that two of the John Doe defendants told the
“offender” that Wetzel reported him. Wetzel also claims that Stroble and the third John
Doe defendant failed to supervise their subordinates. Wetzel seeks monetary damages
and an order directing Prieto and Stroble to file his documents.
1
Rec. Doc. No. 5.
With his complaint, plaintiff submitted an application to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915. This is a non-dispositive pretrial matter which was
referred to the undersigned magistrate judge pursuant to Local Rule 72.1(B)(1) and 28
U.S.C. § 636(b).
The Prison Litigation Reform Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321,
(“PLRA”) now codified at Title 28 U.S.C. § 1915(g), provides that a prisoner shall not
be allowed to bring a civil action pursuant to Section 1915 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 as frivolous, malicious, or for failure
to state a claim for which relief can be granted, unless the prisoner is under imminent
danger of serious physical injury.
The court’s records establish that plaintiff has filed more than 40 civil lawsuits in
this federal court. At least twelve of his prior civil complaints, filed while plaintiff was
incarcerated, were dismissed as frivolous and/or for failure to state a claim for which
relief can be granted. These include, but are not limited to, the following case: Andrew
Wetzel v. Rodney Strain, et al., Civ. Action 09-7637“C”(4); Andrew Wetzel v. Rodney
Strain, et al., Civ. Action 09-7633“R”(3); Andrew David Wetzel v. Judge Richard A.
Swartz, et al., Civ. Action 09-7380“S”(5); Andrew Wetzel v. Judge Allison Penzato, et
al., Civ. Action 09-7211“C”(1).
2
Wetzel has also since been barred on at least 24 occasions from proceeding with
his civil complaints as a pauper in this court pursuant to 28 U.S.C. §1915(g). See e.g.,
Andrew D. Wetzel v. Judge Richard A. Swartz, et al., Civ. Action 14-2527“R”(4);
Andrew D. Wetzel v. La. Dep’t of Corrs., et al., Civ. Action 13-5484“B”(1); Andrew
David Wetzel v. Warden Jerry Goodwin, et al., Civ. Action 13-3478“N”(5); Andrew D.
Wetzel v. Warden Robert Tanner, et al., Civ. Action 13-2487“B”(3).
Despite the three-strikes bar against further civil filings by Wetzel, however, the
court allowed him to proceed with C. A. No. 12-1550“A”(2), given that he asserted facts
sufficient to establish imminent danger of serious physical injury at the time of filing.
Although Wetzel attempts to avoid the bar again in this case by asserting that he is in
imminent danger of serious physical injury, his present circumstances differ from those
in the prior action, and he has not established facts to support imminent danger in this
instance.
Imminent danger refers to threats which are “real and proximate,” meaning “a
genuine emergency where time is pressing.” See e.g., Ciarpaglini v. Saini, 352 F.3d 328,
330 (7th Cir. 2003); Banos v. O’Guinn, 144 F.3d 863, 884-85 (5th Cir. 1998). Plaintiffs
must state specific facts, not conclusory allegations to establish this level of urgent
concern for their physical safety. Brinkmann v. Johnston, 793 F.2d 111, 113 (5th Cir.
1986). In addition, to avoid the Section 1915(g) bar, an allegation of imminent danger
3
must relate to the claims forming the basis of the complaint, and the claim for relief must
be for the alleviation of that threat of harm. Judd v. Federal Election Commission, 311
F. App’x 730, 731 (5th Cir. 2009); Crooker v. United States, No. 11-10495, 2011 WL
1375613, at *2 (D. Mass. Apr. 2, 2011).
In this case, Wetzel does not establish specific facts to support his conclusory and
unsubstantiated allegation regarding imminent danger of serious physical injury. His
attachment to the complaint simply lists past incidents of alleged sexual assaults,
although he does not indicate where the incidents occurred.2 He does not allege or show
that he is now or was in imminent danger of further harm at the time he filed this
complaint. See Banos, 144 F.3d at 883; Cloud v. Stotts, 455 F. App’x 534 (5th Cir.
2011). Allegations of past harms or dangers do not suffice to overcome the three-strikes
bar. Banos, 144 F.3d at 884.
In addition, Wetzel does not seek relief from this court related to an imminent
danger or the prevention of some future impending danger. Instead, he seeks only
monetary compensation for the alleged failure of two of the defendants to file his
pleadings and the John Doe defendants’ alleged failure to protect him from past harms.
The pursuit of monetary compensation, with no claim or even speculation of future harm,
does not suffice to overcome the bar under Section 1915(g).
2
Rec. Doc. No. 5, p. 5.
4
For the foregoing reasons, Wetzel is not entitled to proceed in forma pauperis
pursuant to the provisions of the PLRA and Section 1915(g). Accordingly, IT IS
ORDERED that Andrew Wetzel’s motion to proceed in forma pauperis is DENIED
pursuant to 28 U.S.C. § 1915(g).
New Orleans, Louisiana, this
7th
day of June, 2016.
JOSEPH C. WILKINSON, JR.
UNITED STATES MAGISTRATE JUDGE
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