LaVergne v. Cain et al

Filing 2

ORDER TO PAY FULL FILING FEE: The plaintiff is barred from proceeding informa pauperis because he 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 up on which relief can be granted. The plaintiff is granted 21 days from the date of this order to pay the court's filing fee in the amount of $400. The filing fee must be paid in full in a single 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 plaintiff's complaint without prejudice. Filing Fee due by 2/17/2015. Signed by Magistrate Judge Stephen C. Riedlinger on 01/26/2015. (BCL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

BRANDON S. LAVERGNE (#424227)
VERSUS

CIVIL ACTION

N. BURL CAIN, ET AL

NUMBER 15-34-BAJ-SCR

ORDER TO PAY FULL FILING FEE
Pro se plaintiff, an inmate confined at Louisiana State
Penitentiary (hereafter “LSP”), Angola, Louisiana, filed this
action pursuant to 42 U.S.C. § 1983 against Warden N. Burl Cain,
LSP Legal Programs Director Trish Foster, Maj. Larry Smith, Maj.
Michael Vaughn, Lt. Cindy Vannoy, Classification Supervisor Amber
Vittirao and an unidentified Supervisor of Investigation Services.
Plaintiff alleged that: (1) in September 2014 he was issued a
disciplinary report accusing him of sending (or causing to be sent)
unauthorized mail to someone on his non-contact list, (2) the
appeal

of

the

disciplinary

board

decision

regarding

the

unauthorized mail was not decided in a timely manner, (3) an
administrative grievance complaining that the disciplinary board
appeal was not decided was rejected, (4) he was placed on “mail
block”

restricting

him

from

corresponding

with

anyone

not

identified on his visitors list, (5) on December 22, 2014, he was
issued a false disciplinary report accusing him of contacting
someone on his no-contact list, (6) in early 2014 prison officials

began monitoring his mail causing his mail to be delayed, lost or
destroyed, (7) a photograph of his son was confiscated from
correspondence from his fiancé without notice or an opportunity to
appeal the confiscation, all in retaliation for the plaintiff
accessing the courts.
Plaintiff did not pay the filing fee or file a motion to
proceed in forma pauperis.
Section

1915(g)

of

Title

28

of

the

United

States

Code

provides:
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.

2

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.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 under the

exception.
Therefore;
IT IS ORDERED that the plaintiff is barred from proceeding in
forma pauperis because he 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.
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

A list of cases dismissed as frivolous or failure to state
a claim by the district court include: Brandon Scott Lavergne v.
Advancial Federal Credit Union, CV 13-2119-RTH-CMH (W.D. La.);
Brandon Scott Lavergne v. Laincy Vasseur Martinez, CV 13-2121-RTHCMH (W.D. La.); and Brandon Scott Lavergne v. Claire Gianfala
Higgingbottom, CV 13-2122-RTH-CMH (W.D. La.).
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.
Baton Rouge, Louisiana, January 26, 2015.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

4