Nickles v. Cain et al

Filing 66

ORDER: The 5 Order on Motion to Proceed In Forma Pauperis (Prisoner) is VACATED. The 2 Motion to Proceed In Forma Pauperis is DENIED. Plaintiff is granted twenty-one (21) days from the date of this Order within which to pay $391.58, the remaining amount of the Court's filing fee. The filing fee must be paid in full in a single payment. Signed by Magistrate Judge Erin Wilder-Doomes on 10/18/2017. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

CLENANT NICKLES (#131849)

CIVIL ACTION

VERSUS
WARDEN BURL CAIN, ET AL.

NO. 14-0260-BAJ-EWD

ORDER
Pro se Plaintiff, an inmate confined at the Louisiana State Penitentiary (“LSP”), Angola,
Louisiana, filed this proceeding pursuant to 42 U.S.C. § 1983 against former Warden Burl Cain,
Major Daniel Davis and Capt. Charles Westbrook, alleging that his constitutional rights were
violated on November 6, 2012, (1) when Defendant Westbrook allegedly failed to take action to
protect Plaintiff from harm and falsified a disciplinary charge against Plaintiff, and (2) when
Defendant Davis allegedly utilized excessive force against Plaintiff. Pursuant to earlier Rulings
in this case, the Court has dismissed Plaintiff’s claims asserted against Defendants Cain and
Westbrook.

See R. Docs. 40 and 64. Also pursuant to a prior Order in this case (R. Doc. 5), the

Court granted Plaintiff authorization to proceed in forma pauperis herein.
The statute applicable to the granting by courts of in forma pauperis status to inmates in
civil proceedings challenging the conditions of their confinement establish that Plaintiff is no
longer entitled to proceed as a pauper in this case. This statute, 28 U.S.C. ' 1915(g), provides,
in pertinent part:
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
examined the effect of the referenced statute and concluded that all civil actions or appeals
dismissed as frivolous, malicious or for failure to state a claim are included within the ambit of the
“three strikes” provision of § 1915(g).

In addition, an interpretation of Adepegba instructs that

this Court should revoke the prior grant of pauper status to inmates who are later determined to
have accumulated three “strikes” and should require that these inmates pay the Court’s filing fee
or face dismissal of their pending actions or appeals.

See id. at 388 (concluding that the appeal

under review in that case and all other pending appeals filed by the “three strikes” petitioner should
be dismissed in the absence of payment by the petitioner of the full amount of the Court’s filing
fee).
A review of federal court records reflects that Plaintiff has, on three or more prior occasions
while incarcerated, brought actions or appeals in the federal courts that have been dismissed as
frivolous, malicious, or for failure to state a claim.1

Accordingly, because Plaintiff is now barred

from proceeding in forma pauperis in this case,2 he is required to pay the full amount of the Court=s
filing fee. Therefore,
IT IS ORDERED that the Order of this Court dated May 19, 2014 (R. Doc. 5), pursuant
to which Plaintiff was granted in forma pauperis status in this proceeding, be and it is hereby
VACATED.
IT IS FURTHER ORDERED that Plaintiff=s Motion to Proceed In Forma Pauperis

1.
Cases filed by Plaintiff, while incarcerated, that have been dismissed by the federal courts
as frivolous or for failure to state a claim include, but are not limited to, Clenant Nickles v. Jack
A. Stephens, et al., Civil Action No. 05-6295-SRD (E.D. La.), Clenant Nickles v. Wayne G. Cresap,
Judge, Civil Action No. 05-6296-SSV (E.D. La.), and Clenant Nickles v. Burl Cain, et al., Civil
Action No. 16-0286-BAJ-RLB.
2.
The Court finds that the allegations of the Complaint do not fall within the Aimminent
danger@ exception to the statute.

herein (R. Doc. 2) is hereby DENIED.
IT IS FURTHER ORDERED that Plaintiff is granted twenty-one (21) days from the date
of this Order within which to pay $391.58, the remaining amount of the Court=s filing fee.3
filing fee must be paid in full in a single payment.

The

No partial payments will be accepted.

Failure to pay the filing fee within 21 days may result in the dismissal of Plaintiff=s action
without further notice from the Court.
Signed in Baton Rouge, Louisiana, on October 18, 2017.

S
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE

3.
The Docket sheet reflects that Plaintiff has made partial payments toward satisfaction of
the Court’s filing fee in the amount of $8.42, leaving a balance due of $391.58.