Wiley v. LA State Prison 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

CHRISTOPHER G. WILEY, III
VERSUS

CIVIL ACTION

LOUISIANA STATE PRISON, ET AL

NUMBER 11-840-JJB-SCR

ORDER TO PAY FULL FILING FEE
Pro se plaintiff, while confined at the Central Louisiana
State Hospital, Pineville, Louisiana, filed this action pursuant to
42 U.S.C. § 1983 against Louisiana State Prison, the Department of
Health and Hospitals, the Civil Rights Division and Gilda Wesley.
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.

1

Plaintiff’s claims do not fall under the exception.

A list of cases dismissed as frivolous or failure to state
a claim include: Christopher G. Wiley v. C.M. Lensing, et al, CV
96-453 (M. D. La.); Christopher George Wiley v. Louisiana State
Penitentiary, CV 96-454 (M.D. La.); Christopher George Wiley v.
Richard Ieyoub, CV 99-644-C-3 (M.D. La.); Christopher G. Wiley v.
Judge Janice Clark, et al, CV 00-420-D-3 (M.D. La.); Christopher G.
Wiley v. Office of Family Support, et al, CV 01-308-C-2 (M.D. La.);
and Christopher G. Wiley, III v. Social Security Administration, et
al, CV 07-692-RET.

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