Dufrene v. Batiste

Filing 12

RULING: The above-captioned proceeding be dismissed, without prejudice, for failure of Plaintiff to pay the Court's filing fee. Judgment shall be entered accordingly. Signed by Chief Judge Brian A. Jackson on 10/2/2017. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

CHRISTOPHER DUFRENE (#102405)

CIVIL ACTION

VERSUS
WARDEN BATISTE

NO. 15-0175-BAJ-EWD
RULING

On July 25, 2017, pursuant to the Athree strikes@ provision of 28 U.S.C. ' 1915(g), this Court
determined that Plaintiff was no longer entitled to proceed in forma pauperis in this case. See R. Doc.
11. Accordingly, the Court vacated the prior grant of pauper status to Plaintiff and ordered him to
pay, within 21 days, the full amount of the Court=s filing fee. Id. The Court’s Order advised Plaintiff
that a failure to comply with the Court=s Order Ashall result in the dismissal of Plaintiff=s action without
further notice from the Court.@ Id.
In accordance with 28 U.S.C. ' 1915, a prisoner filing a civil action or appeal in federal court
may be granted in forma pauperis status but is nonetheless required to pay the full amount of the
Court=s filing fee over time in incremental installments.

However, such incremental payments are not

allowed and pauper status shall be denied where the prisoner has filed, on at least three prior occasions
while incarcerated, actions or appeals that have been dismissed as legally baseless. Specifically:
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 the instant case, 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 upon which relief may be granted.1

Accordingly, pursuant to Adepegba v. Hammons,

103 F.3d 383 (5th Cir. 1996), which instructs that this Court should revoke the prior grant of pauper
status to inmates who Astrike out@ and should require that they pay the Court=s filing fee or face
dismissal of their pending actions or appeals, the Court vacated the prior grant of pauper status to
Plaintiff and directed him to pay the full amount of the Court=s filing fee. See id. at 388 (concluding
that the appeal there under review and all other pending appeals filed by a Athree 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 the record by the Court now reflects that Plaintiff has failed to pay the filing fee as
ordered. Accordingly,
IT IS ORDERED that the above-captioned proceeding be dismissed, without prejudice, for
failure of Plaintiff to pay the Court=s filing fee.2

Judgment shall be entered accordingly.

Baton Rouge, Louisiana, this 2nd day of October, 2017.

BRIAN A. JACKSON, CHIEF JUDGE
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

1. Cases or appeals filed by Plaintiff that have been dismissed by the federal courts as
frivolous, malicious or for failure to state a claim include, but are not limited to, Christopher Dufrene
v. Captain Turner, et al., Civil Action No. 05-2066-SMH (W.D. La.), Christopher Dufrene v. Mrs.
Been, Civil Action No. 16-0049-SDD-EWD (M.D. La.), and Christopher Dufrene v. Ray Hanson, Civil
Action No. 07-1090-SMH (W.D. La.) (dismissal for failure to state a claim where the failure to exhaust
administrative remedies was clear from the face of Plaintiff’s Complaint, recognized as being a “strike”
in Emmett v. Ebner, 423 Fed. Appx. 492 (5th Cir. 2011); Martinez v. Bus Driver, 344 Fed. Appx. 492
(5th Cir. 2009); and Johnson v. Kukua, 342 Fed. Appx. 933 (5th Cir. 2009)).
2. The Court has determined that the allegations of Plaintiff’s Complaint do not fall within
the “imminent danger” exception to 28 U.S.C. ' 1915(g). See R. Doc. 11 at n. 2.