Hood v. Vessel et al

Filing 65

ORDER REVOKING IN FORMA PAUPERIS STATUS: The 6 Order granting Motion to Proceed In Forma Pauperis is VACATED. Plaintiff is granted 21 days to pay the court's filing fee in the amount of $400. A copy of this order shall be mailed or delivered by electronic means, to the plaintiff and to the Centralized Inmate Banking Section for the Louisiana Department of Public Safety and Corrections. Signed by Magistrate Judge Stephen C. Riedlinger on 12/11/2013. (NLT)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

CAREY LOUIS HOOD (#299810)
VERSUS

CIVIL ACTION

SGT. KIMBERLY VESSEL, ET AL

NUMBER 13-303-JJB-SCR

ORDER REVOKING IN FORMA PAUPERIS STATUS
Pro se plaintiff, an inmate confined at Louisiana State
Penitentiary, Angola, Louisiana, filed this action pursuant to 42
U.S.C. § 1983 against Sgt. Kimberly Vessel, Lt. Arnold Jacob, Lt.
Lilly

Roblin,

Capt.

Michelle

Piazza,

Maj.

Dixon,

Reginald

Ladmirault, Diane Peabody, Asst. Warden Chad Menzina, Dr. Jason
Collin and Warden Burl Cain.
a

false

disciplinary

Plaintiff alleged that he was issued

report

in

retaliation

for

filing

an

administrative grievance against a correctional officer, he was
denied due process at a disciplinary board hearing and during the
disciplinary

board

appeal

process,

he

was

subjected

to

unconstitutional conditions of confinement, and he was denied
prompt medical and mental health treatment in violation of his
constitutional rights.
Plaintiff filed a motion to proceed in forma pauperis. Record
document number 2.

On May 21, 2013, the plaintiff’s motion to

proceed in forma pauperis was granted.

Record document number 6.

Section 1915 of Title 28 of the United States Code provides in
pertinent part the following:

CIB

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), as amended.
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 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,

2

or an appeal was dismissed as frivolous.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 do not fall

within the exception.
A review of the record showed that the plaintiff has paid no
portion of the filing fee.
Therefore;
IT IS ORDERED that the May 21, 2013 order granting the
plaintiff in forma pauperis status is VACATED.
IT IS FURTHER ORDERED that the plaintiff is barred from
proceeding in forma pauperis because he has, on three or more
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, or an appeal that was
dismissed as frivolous.
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 $400.

1

Hood v. Angelle, No. 3:09-CV-950-JTT-JDK (M.D. La. Apr. 21,
2010); Hood v. Voorhies, No. 3:10-CV-158-JVP-SCR (M.D. La. Mar. 31,
2010); and, Hood v. Vessel, No. 3:13-CV-303-JJB-SCR (M. D. La. Nov.
5, 2013) (appeal dismissed as frivolous, stating “he may not
proceed IFP in any civil action or appeal ... while he is
incarcerated or detained in any facility unless he is under
imminent danger of serious physical injury.” (emphasis added).)
3

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.
IT IS FURTHER ORDERED that a copy of this order shall be
mailed or delivered by electronic means, to the plaintiff and to
the Centralized Inmate Banking Section for the Louisiana Department
of Public Safety and Corrections.
Baton Rouge, Louisiana, December 11, 2013.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

4