Williams v. Caldwell et al

Filing 13

REPORT AND RECOMMENDATIONS regarding 1 Complaint filed by Patrick W. Williams. It is the recommendation of the Magistrate Judge that the plaintiff's Complaint be dismissed, without prejudice, for failure to pay the Court's filing fee. Objections to R&R due by 7/2/2009. Signed by Magistrate Judge Docia L Dalby on 6/18/09. (BP, )

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA PATRICK WAYNE WILLIAMS (#317402) VERSUS JAMES D. CALDWELL, ET AL. NOTICE Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the United States District Court. In accordance with 28 U.S.C. § 636(b)(1), you have ten (10) days after being served with the attached Report to file written objections to the proposed findings of fact, conclusions of law and recommendations therein. Failure to file written objections to the proposed findings, conclusions, and recommendations within 10 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions of the Magistrate Judge which have been accepted by the District Court. ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT. Signed in Baton Rouge, Louisiana, on June 18, 2009. NO. 09-0128-JJB-DLD CIVIL ACTION

MAGISTRATE JUDGE DOCIA L. DALBY

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA PATRICK WAYNE WILLIAMS (#317402) VERSUS JAMES D. CALDWELL, ET AL. NO. 09-0128-JJB-DLD CIVIL ACTION

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION This matter is before the Court on the Order to the plaintiff to pay the full amount of the Court's filing fee. Rec.doc.no. 11. On April 16, 2009, pursuant to the "three strikes" provision of 28 U.S.C. § 1915(g), the undersigned Magistrate Judge denied the plaintiff's motion to proceed in forma pauperis herein and ordered the plaintiff to pay, within twenty (20) days, the full amount of the Court's filing fee. Rec.doc.no. 11. The plaintiff was placed on notice that a failure to comply with the Court's Order in this regard "shall result in the dismissal of the plaintiff's Complaint without further notice from the Court." Id. Although a review of the record reflects that the plaintiff has filed an objection to the Court's denial of his motion to proceed as a pauper herein, it does not appear that the plaintiff has paid the Court's filing fee within the time allowed. In accordance with 28 U.S.C. § 1915, all prisoners granted in forma pauperis status are required to pay the full amount of the Court's filing fee. This statute further provides that, with one exception, an inmate may make the required payment over time in incremental installments. However, such incremental payments are not allowed, and pauper status shall be denied, where the inmate has filed, on at least three prior occasions, actions or appeals which have been dismissed as baseless. Specifically: In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding 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). In the instant case, the record reflects that the plaintiff has, on three or more prior occasions while incarcerated, brought actions or appeals which have been dismissed as frivolous.1 Accordingly, pursuant to Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996), this Court entered an Order directing the plaintiff to pay the full amount of the Court's filing fee. A review of the record by the Court now reflects that the plaintiff has failed to comply with the Court's Order in this regard. Accordingly, the plaintiff's action should be dismissed for failure to pay the Court's filing fee. RECOMMENDATION It is the recommendation of the Magistrate Judge that the plaintiff's Complaint be dismissed, without prejudice, for failure to pay the Court's filing fee. Signed in Baton Rouge, Louisiana, on June 18, 2009.

MAGISTRATE JUDGE DOCIA L. DALBY

Cases filed by the plaintiff which have been dismissed by this Court or by the Court of Appeals as frivolous include, but are not limited to Patrick Wayne Williams v. Burl Cain, et al., Civil Action No. 04-0872-D-M3 (M.D. La.), Patrick wayne Williams v. Pfizer, et al., civil Action No. 05-0043-C-M1 (M.D. La.)(Counting as two strikes because, after dismissal as frivolous in the district court, the plaintiff's appeal was also dismissed as frivolous), and Patrick Wayne Williams v. Sheriff's Department of Iberia Parish,et al., Civil Action No. 04-2619 (W.D. La.).
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