Cardona v. Keffer et al

Filing 3

MEMORANDUM ORDER IT IS ORDERED that 2 MOTION for Leave to Proceed in forma pauperis filed by Jose Cristobal Cardona is DENIED; IT IS FURTHER ORDERED that in order for this complaint to remain viable, plaintiff must pay the full filing fee of $350.00 within 20 days from the date of this order; FAILURE TO PAY THE FULL FILING FEE WILL RESULT IN THE PLEADINGS BEING STRICKEN FROM THE RECORD Signed by Magistrate Judge James D Kirk on 4/21/09. (crt,Davis, C)

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RECEIVED

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA

WESTER1~JD~S~ CT LOUISIANA 9

TONY R'C~E~tERK

ALEXANDRIA DIVISION CIVIL ACTION NO. 1:09-CV-0650 SECTION P JUDGE DRELL MAGISTRATE JUDGE KIRK MEMORANDUM ORDER

JOSE CRISTOBAL CARDONA FED. REG. NO. 40869-080 VS. WARDEN JOE KEFFER, ET ~L.

Pro se plaintiff Jose Cr±stobal Cardona filed the instant
civil rights complaint pursuant to Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 29 L.Ed.2d 619 (1971) on April 14, 403 U.S. 388, 91 S.Ct. 1999,

2009. Plaintiff is an inmate

in the custody of the Federal Bureau of Prisons; he is incarcerated at the United States Penitentiary, Louisiana, Pollock,

and he complains that he is being disciplined because

he refuses to fully participate in the BOP's PlC? program. Plaintiff has asked to be allowed to proceed in forma pauperis pursuant to the provisions of 28 U.S.C. §1915. [rec. doc. 2]

Further review of the United States Court records reveals that since his incarceration, Cardona, while a prisoner, has filed at least three civil rights lawsuits in the United States Courts, and, which were dismissed as frivolous.'

`See Jose Cristohal Cardona v. R. Tuite, No. 07-30041 (5th Cir. 12/11/2007) a copy of which plaintiff has attached as rec. doc. 1-3.

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.

Cardona is well aware of this provision.

He claims that he

is in imminent danger of serious injury but nothing in his pleadings supports this conclusory allegation. He seeks monetary damages because he was confined in Special Housing Unit (SHU) in

June 2008 and forced against his will to participate in the PlC? program. In Banos v. Q'Guin, 144 F.3d 883, 884--85 (5th Cir.1998),

the Fifth Circuit held that the determination as to whether a prisoner is in "imminent danger" must be made as of the time that he seeks to file his Complaint. Nothing in the pleadings suggest the existence of a credible and imminent threat to plaintiff's safety or welfare. In short,

he is not eligible to proceed in forma pauperis in this matter. Therefore IT IS ORDERED that plaintiff's Motion to Proceed in forma pauperis {rec. doc. 2) is DENIED;

IT IS FURTHER ORDERED that in order for this complaint to

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remain viable, plaintiff must pay the full filing fee of $350.00 within twenty (20) days from the date of this order. FAILURE TO PAY THE FULL FILING FE~ WILL RESULT IN THE PLEADINGS BEING STRICKEN FROM THE RECORD. In Chambers, Alexandria, Louisiana 2009.

STATES

JUDGE

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