Dean v. LeBlanc et al

Filing 2

ORDER to Pay Full Filing Fee: IT IS ORDERED that the plaintiff is barred from proceeding in forma pauperis because he has, on more than three prior occasions, while incarcerated, brought an action in federal court that was dismissed as frivolous or f or failure to state a claim upon which relief can be granted. IT IS FURTHER ORDERED that the plaintiff is granted 21 days from the date of this order to pay the courts filing fee in the amount of $350. The filing fee must be paid in full in a si ngle payment. No partial payment of fees will be accepted. Failure to pay the filing fee within 21 days shall result in the dismissal of the plaintiffs complaint without prejudice.. Signed by Magistrate Judge Stephen C. Riedlinger on 12/21/2011. (CMM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

NOEL DEAN (#309740)
VERSUS

CIVIL ACTION

JAMES LEBLANC, ET AL

NUMBER 11-833-BAJ-SCR

ORDER TO PAY FULL FILING FEE
Pro se plaintiff, an inmate confined at Louisiana State
Penitentiary, Angola, Louisiana, filed this action pursuant to 42
U.S.C. § 1983 against Louisiana Department of Public Safety and
Corrections Secretary James LeBlanc, Warden N. Burl Cain, Dr. Toby
Momah, Mental Health Director Carrol Gilcrease, Assistant Warden
Chad

Menzina,

Medical

Director

Jonathan

Roundtree

and

an

unidentified doctor. Plaintiff alleged that he was denied adequate
medical

treatment

in

violation

of

his

constitutional

rights.

Specifically, the plaintiff alleged that he has HIV and suffers
from depression.

Plaintiff alleged that medical personnel advised

him that he cannot be placed on HIV medication until he no longer
hears voices.

Plaintiff alleged that medical personnel can treat

both conditions and he should be moved to the mental health unit to
treat his depression.
Plaintiff did not pay the filing fee or file a motion to
proceed in forma pauperis.

However, a review of the court’s

records showed that the plaintiff is barred from proceeding in

forma pauperis.
Section 1915 of Title 28 of the United States Code provides in
pertinent part the following:
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 Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996), the
Fifth Circuit Court of Appeals held that: (1) section 1915(g)
applies to cases pending on the effective date of the statute; and,
(2) a suit dismissed prior to the effective date of the statute on
the grounds that it is frivolous, malicious, or fails to state a
claim upon which relief may be granted, is considered within the
ambit

of

the

“three

strikes”

provision

of

section

1915(g).

Dismissals as frivolous in the district courts or the court of
appeals count for the purposes of the statute.

Id.

Dismissals

include only those for which appeal has been exhausted or waived.
Id.

However, dismissals later reversed are not to be counted as a

strike.

Id.

By contrast, the frivolous appeal of a lower court’s

dismissal as frivolous counts twice.

Id.

Plaintiff has, on more than three prior occasions, while
incarcerated, brought an action in federal court that was dismissed
as

frivolous or for failure to state a claim upon which relief can

be granted.1

Section 1915(g) contains an exception that allows

prisoners whose privileges have been revoked to proceed in forma
pauperis in cases involving imminent danger of serious physical
injury.

Plaintiff’s claims are insufficient to fall under the

exception.
Therefore;
IT IS ORDERED that the plaintiff is barred from proceeding in
forma pauperis because he has, on more than three prior occasions,
while incarcerated, brought an action in federal court that was
dismissed as frivolous or for failure to state a claim upon which
relief can be granted.
IT IS FURTHER ORDERED that the plaintiff is granted 21 days
from the date of this order to pay the court’s filing fee in the
amount of $350.
The filing fee must be paid in full in a single payment.
partial payment of fees will be accepted.

No

Failure to pay the

filing fee within 21 days shall result in the dismissal of the
plaintiff’s complaint without prejudice.
Baton Rouge, Louisiana, December 21, 2011.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

1

A partial list of cases dismissed as frivolous or for
failure to state a claim include: Noel Dean v. N. Burl Cain, et al,
CV 10-671-BAJ-CN (M.D. La.) (two strikes); and, Noel Dean v. Howard
Prince, et al, CV 10-463-BAJ-DLD (M.D. La.).