Buckenberger v. Milazzo
ORDER AND REASONS: IT IS ORDERED that the 20 Motion to Amend/Correct is DENIED, as set forth in document. Signed by Judge Ivan L.R. Lemelle on 10/4/2017. (jls)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JANE TRICHE MILAZZO, ET AL.
ORDER AND REASONS
Before the Court is “Plaintiff’s (Motion) to “Alter-Amend”
the USDC (Erroneous) Judgment of Aug. 27, 2017.” Rec. Doc. 20.
Plaintiff appears to seek reconsideration of the Court’s denial
(Rec. Doc. 19) of his application to appeal in forma pauperis (Rec.
Doc. 17). Neither Defendants nor the United States have filed a
response. For the reasons discussed below,
IT IS ORDERED that the motion (Rec. Doc. 20) is DENIED.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
United States District Judges Jane Triche Milazzo and Martin L.C.
Feldman, United States Magistrate Judges Daniel E. Knowles, III,
and Michael B. North, and attorney Gerald Neilsen. Rec. Doc. 1-2
at 1, 3-4. The United States, acting as an interested party,
removed the action from state court. Rec. Doc. 1. Plaintiff filed
motions challenging removal and seeking remand, but the Court
denied Plaintiff’s motion to set aside removal and dismissed as
frivolous Plaintiff’s motion to remand. Rec. Doc. 10. The Court
also ordered Plaintiff to show cause why the Court should not
dismiss the action as frivolous and find his claims barred by
judicial immunity. Id. Plaintiff’s responses were unavailing (Rec.
prejudice and entered judgment in favor of Defendants. Rec. Doc.
13. Plaintiff timely filed a notice of appeal. Rec. Doc. 14.
Plaintiff also applied for leave to appeal in forma pauperis.
Rec. Doc. 17. The United States opposed Plaintiff’s application
and argued that it failed to meet the requirements of 28 U.S.C.
§ 1915(g). Rec. Doc. 18. That section requires a plaintiff seeking
to appeal in forma pauperis to show an “imminent danger of serious
physical injury” when at least three of his previous in forma
pauperis actions have been “dismissed on the grounds that [they
were] frivolous, malicious, or fail[ed] to state a claim upon which
relief may be granted.” 28 U.S.C. § 1915(g). The Court denied
Plaintiff’s application because (1) Plaintiff did not satisfy
28 U.S.C. § 1915(g) and (2) Plaintiff did not take appeal in good
faith given that his action was frivolous, his claims were barred
by judicial immunity, and he had not complied with an earlier court
order. Rec. Doc. 19. Plaintiff then filed the instant motion to
amend the Court’s denial of his application. Rec. Doc. 20.
LAW AND ANALYSIS
“A Rule 59(e) motion . . . is not the proper vehicle for
rehashing evidence, legal theories, or arguments that could have
been offered or raised before” the order was issued.1 Templet v.
HydroChem, Inc., 367 F.3d 473, 478-79 (5th Cir. 2004). “When there
exists no independent reason for reconsideration other than mere
disagreement with a prior order, reconsideration is a waste of
judicial time and resources and should not be granted.” Chapman v.
LHC Grp., Inc., 126 F. Supp. 3d 711, 719 (E.D. La. 2015). Because
Plaintiff offers no new factual or legal arguments in support of
his application to appeal in forma pauperis, there are no grounds
for amending the Court’s denial of Plaintiff’s application.2
A plaintiff’s ability to litigate an action in forma pauperis
is governed by statute. See 28 U.S.C. § 1915. The Court relied on
two statutory limitations when denying Plaintiff’s application.
See Rec. Doc. 19. The first states that “[a]n appeal may not be
taken in forma pauperis if the trial court certifies in writing
Plaintiff’s motion is properly analyzed under Federal Rule of Civil Procedure
59(e) because it was filed within twenty-eight days after the Court denied
Plaintiff’s application to appeal in forma pauperis. See Texas A&M Research
Found. v. Magna Transp., Inc., 338 F.3d 394, 400 (5th Cir. 2003).
2 This is especially true given that Federal Rule of Appellate Procedure 24
provides a path for a plaintiff to challenge a district court’s denial of an
application to appeal in forma pauperis. When a district court “denies a motion
to proceed on appeal in forma pauperis” or “certifies that the appeal is not
taken in good faith[,]” it must issue notice to that effect. Fed. R. App. P.
24(a)(4) (emphasis added). “[W]ithin 30 days after service of the notice[,]”
“[a] party may file a motion to proceed on appeal in forma pauperis in the court
of appeals[.]” Fed. R. App. P. 24(a)(5) (emphasis added); see also Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997). If the court of appeals decides that
the application to appeal in forma pauperis was properly denied by the district
court, the plaintiff must pay the requisite fees and costs before proceeding
with his appeal. Baugh, 117 F.3d at 202. But if the court of appeals disagrees
with the district court’s denial, and concludes that the plaintiff is entitled
to appeal in forma pauperis, the court of appeals will proceed to the merits of
the appeal. Id.
§ 1915(a)(3) (emphasis added). The second is the so-called “three
strikes” provision, which forbids a prisoner from pursuing an
appeal in forma pauperis “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.” Id.
A plaintiff’s appeal is not in good faith unless it “involves
legal points arguable on their merits (and [is] therefore not
frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).
The Court certified in writing that Plaintiff’s appeal was not
defendants have judicial immunity, and Plaintiff failed to comply
with a court order. See Rec. Doc. 19. Plaintiff offers no arguments
to rebut the Court’s conclusion that his application is not in
strikes” provision in 28 U.S.C. § 1915(g) because Plaintiff has
accrued three strikes from prior unsuccessful in forma pauperis
litigation, but has not “alleg[ed] that he is under imminent danger
of serious physical injury.” Rec. Doc. 19; see also Buckenberger
v. Louisiana DPS & C, No. 15-732-JWD-EWD, 2016 WL 707024, at *2-5
(M.D. La. Feb. 22, 2016)(concluding that the same Plaintiff who
filed the instant motion “had ‘three strikes,’ and, consequently,
had to satisfy the imminent danger exception” before proceeding in
forma pauperis). Plaintiff has challenged neither the Court’s
conclusion that he must show an imminent danger of serious physical
injury before appealing in forma pauperis, nor the conclusion that
he has failed to make such a showing.
New Orleans, Louisiana, this 4th day of October, 2017.
SENIOR UNITED STATES DISTRICT JUDGE
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