Phillips v. Reid

Filing 6

RULING denying 5 Motion for Relief from 4 Order on Motion to Proceed In Forma Pauperis (Prisoner). Plaintiff is reminded that failure to pay the full filing fee within 21 days of the date of Order to Pay Full Filling Fee may result in dismissal of his Complaint. Signed by Magistrate Judge Stephen C. Riedlinger on 7/27/2015. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

DONTRALE PHILLIPS (#464769)

CIVIL ACTION

VERSUS
CLINTON REID

NO. 15-385-JWD-SCR
RULING ON MOTION RELIEF FROM ORDER

Before the Court is the plaintiff’s Motion for Relief From a
Order to Pay Full Filing Fee (R. Doc. 5),
Plaintiff filed this motion pursuant to Rule 6(b), Fed. R.
Civ. P. Plaintiff seeks reconsideration of the July 15, 2015 Order
to Pay Full Filing Fee1 which denied his Motion to Proceed in Forma
Pauperis because he has three prior cases or appeals which were
dismissed as frivolous or for failure to state a claim as provided
in 28 U.S.C. § 1915(g).

Plaintiff asserts that one of his three

prior dismissals, in Dontrale Demarko Phillips v. Rapides Parish,
et al., Civil Action No. 13-1925-JTT-JDK (W.D.La.), should not be
counted against him because the dismissal in that case was not
based

upon

a

finding

of

frivolousness

but,

instead,

upon

a

determination that (1) his claim for release from confinement had
to first be pursued in a habeas corpus proceeding, and (2) his
claim for monetary damages was premature in light of the decision
in Heck v. Humphrey, 312 U.S. 477 (1994).

Plaintiff believes that

the dismissal in that prior case does not count as a “strike”
within the meaning of § 1915(g).

1

Record document number 4.

Plaintiff is mistaken.

The referenced dismissal is a strike

because the Court found that the relief requested was unavailable
and, therefore, the plaintiff failed to state a claim upon which
relief may be granted.

See Eaton v. McGee, 113 Fed. Appx. 9 (5th

Cir. 2004) (finding that the dismissal of a plaintiff’s claim based
on Heck v. Humphrey amounted to a strike under § 1915(g)).
also

Johnson

v.

McElveen,

101

F.3d

423

(5th

Cir.

See
1997)

(“[plaintiff] cannot state a claim so long as the validity of his
conviction has not been called into question ...); Stephenson v.
Reno, 28 F.3d 26 (5th Cir. 1994)(“a cause of action seeking damages
under § 1983 for an unconstitutional conviction or sentence does
not

accrue

until

the

conviction

or

sentence

has

been

invalidated...”); Boyd v. Biggers, 31 F.3d 279, 284 (5th Cir. 1994)
(“Dismissal of the § 1983 action under 28 U.S.C. § 1915(d) is
appropriate, post-Heck, because the plaintiff's action has been
shown to be legally frivolous”).
Accordingly, the plaintiff’s Motion for Relief From a Order is
DENIED.
Plaintiff is reminded that failure to pay the full filing fee
within 21 days of the date of Order to Pay Full Filling Fee may
result in dismissal of his Complaint.
Baton Rouge, Louisiana, July 27, 2015.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

2