Scott v. Callahan et al

Filing 3

ORDER denying 2 MOTION to Proceed In Forma Pauperis with Statement of Account. The plaintiff is granted twenty-one (21) days from the date of this Order within which to pay $400.00, the full amount of the Court's filing fee. The filing fe e must be paid in full in a single payment. No partial payments will be accepted. Failure to pay the Court's filing fee shall result in the dismissal of the plaintiff's action without further notice from the Court. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 4/13/2016. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

DERRICK SCOTT (#126372)
CIVIL ACTION
VERSUS
NO. 16-212-JJB-RLB
UNKNOWN CALLAHAN, ET AL.
ORDER
This matter comes before the Court on the plaintiff’s Motion to Proceed In Forma
Pauperis (R. Doc. 2).
The pro se plaintiff, an inmate incarcerated at the Louisiana State Penitentiary, Angola,
Louisiana, filed this action pursuant to 42 U.S.C. § 1983 against Capt. Callahan and Trish Foster
asserting that his constitutional rights have been violated due to deliberate indifference to his
health and safety, and retaliation.
The statute applicable to the granting by federal courts of in forma pauperis status to
inmates in civil proceedings makes clear that the plaintiff is not entitled to proceed as a pauper in
this case. 28 U.S.C. § 1915(g) 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.
A review of the records of this Court reflects that the plaintiff has, on three or more prior
occasions while incarcerated, brought actions or appeals in the federal court that have been

dismissed as frivolous, malicious, or for failure to state a claim.1 Accordingly, because the
plaintiff is 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 plaintiff’s Motion to Proceed In Forma Pauperis (R. Doc. 2),
be and is hereby DENIED.
IT IS FURTHER ORDERED that the plaintiff is granted twenty-one (21) days from the
date of this Order within which to pay $400.00, the full amount of the Court’s filing fee. The
filing fee must be paid in full in a single payment. No partial payments will be accepted. Failure
to pay the Court’s filing fee within 21 days shall result in the dismissal of the plaintiff’s action
without further notice from the Court.
Signed in Baton Rouge, Louisiana, on April 13, 2016.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE

1
Cases or appeals filed by the plaintiff which have been dismissed by the federal courts as frivolous or for failure to
state a claim include, but are not limited to, Derrick Scott v. James M. LeBlanc, et al., Civil Action No. 12-0239BAJ-SCR (M.D., La.), Derrick Scott v. Burl Cain, Civil Action No. 12-0412-JJB-DLD (M.D., La.), and Derrick
Scott v. Officer Haney, et al., Civil Action No. 12-0439-JJB-DLD (M.D., La.). The first two referenced cases were
dismissed because the plaintiff’s Complaints made clear that he had failed to exhaust administrative remedies as
mandated by 42 U.S.C. § 1997e, and the United States Court of Appeals for the Fifth Circuit has concluded that the
dismissal of an action for failure to state a claim is appropriate when it is clear from the face of a plaintiff’s
Complaint that he has not exhausted administrative remedies. See Carbe v. Lappin, 492 F.3d 325, 328 (5th Cir.
2007). In addition, such dismissals may be treated as “strikes” within the context of 28 U.S.C. § 1915(g). See
Emmett v. Ebner, 423 Fed. Appx. 492 (5th Cir. 2011); Martinez v. Bus Driver, 344 Fed. Appx. 46 (5th Cir. 2009);
Johnson v. Kukua, 342 Fed. Appx. 933 (5th Cir. 2009). Finally, the Court hereby takes judicial notice of proceedings
before this Court in Derrick Scott v. Trish Foster, et al., Civil Action No. 13-0665-JJB-RLB (M.D. La.), wherein
both this Court and the Fifth Circuit Court of Appeals found that the plaintiff had accumulated three strikes.
2
The Court finds that the allegations of the plaintiff’s Complaint do not fall within the exception to the statute.