McKendall v. Lagino et al

Filing 3

ORDER AND REASONS: IT IS ORDERED that plaintiff's 2 motion to proceed in forma pauperis is DENIED pursuant to 28 U.S.C. 1915(g). Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 9/21/2017. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ANTONIO JOSEPH MCKENDALL

CIVIL ACTION

VERSUS

NO. 17-9299

WARDEN GREGORY LAGINO, ET AL.

SECTION “J” (2)

ORDER AND REASONS
Plaintiff, Antonio Joseph McKendall, an inmate currently incarcerated in the
Riverbend Detention Center, has submitted an application to proceed in forma
pauperis in connection with the above-captioned 42 U.S.C. § 1983 complaint. Plaintiff
seeks monetary and injunctive relief against defendants for injuries he received in a
fight with another inmate and defendants’ failure to protect him afterwards, while he
was still in the St. Tammany Parish Jail. Record Doc. No. 1, Complaint. His pauper
application is a non-dispositive pretrial matter which was referred to a United States
Magistrate Judge pursuant to Local Rule 72.1(B)(1) and 28 U.S.C. § 636(b).
The Prison Litigation Reform Act (“PLRA”), Pub. L. No. 104-134, 110 Stat.
1321, signed into law on April 26, 1996, now codified at 28 U.S.C. § 1915(g),
provides that a prisoner shall not be allowed to bring a civil action pursuant to 28
U.S.C. § 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 on grounds that it was frivolous, malicious, or failed to state a claim

for which relief can be granted, unless the prisoner is under imminent danger of
serious physical injury.
McKendall has been a frequent filer of civil actions while incarcerated. At least
three (3) of his prior civil actions were dismissed as frivolous and/or for failure to
state a claim: Joseph McKendall v. C.M. Lensing, Civ. Action 01-0539 (M.D. La.
2001) (dismissed with prejudice as frivolous and for failure to state a claim); Joseph
McKendall v. Richard L. Stalder et al., Civ. Action No. 04-0371 (M.D. La. 2004)
(dismissed with prejudice for failure to state a claim and appeal dismissed as
frivolous); Joseph McKendall v. Ms. Blakley et al., Civil Action No. 08-4722“D”(1)
(E.D. La.) (dismissed with prejudice as frivolous and for failure to state a claim). He
has therefore accumulated three “strikes” under the PLRA.
Under these circumstances, plaintiff may not proceed as a pauper in this action
unless he fits within the “imminent danger” exception of Section 1915(g). Plaintiff has
not alleged, nor does his complaint demonstrate, anything establishing that he is in
imminent danger of serious physical injury. He is no longer in the St. Tammany Parish
Jail, where any presumed danger may have existed at some past time. Consequently,
he is not entitled to proceed in forma pauperis pursuant to the provisions of the PLRA.
For the foregoing reasons,

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IT IS ORDERED that plaintiff’s motion to proceed in forma pauperis (Record
Doc. No. 2) is DENIED pursuant to 28 U.S.C. § 1915(g).

21st
New Orleans, Louisiana, this _________ day of September, 2017.

JOSEPH C. WILKINSON, JR.
UNITED STATES MAGISTRATE JUDGE

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