Davis v. Granger et al
Filing
151
MEMORANDUM ORDER granting 142 Motion to Revoke Plaintiff's In Forma Pauperis Status. IT IS ORDERED that defendants Motion to Revoke Plaintiffs In Forma Pauperis Status [doc. #142] is GRANTED and the Order granting plaintiff in forma pauperi s status [doc. 8] is hereby REVOKED and RESCINDED;IT IS FURTHER ORDERED that plaintiff pay the full filing fee of $350.00 within forty-five (45) days from the date of this order, with credit for the amount that he has already paid. FAILURE TO PAY THE FULL FILING FEE WILL RESULT IN THIS CASE BEING STRICKEN FROM THE RECORD. Signed by Magistrate Judge Kathleen Kay on 4/15/2015. (crt,HaikSld, K)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
NOLAN C. DAVIS, SR.
:
CIVIL ACTION NO. 2:12-cv-1746
VERSUS
:
JUDGE MINALDI
DANIEL GRANGER, ET AL
:
MAGISTRATE JUDGE KAY
MEMORANDUM ORDER
Before the court is a Motion to Revoke Plaintiff’s In Forma Pauperis Status [doc. #142]
filed by defendants The GEO Group, Inc., Daniel Granger, Keith Cooley, Terry Terrell and
Darren Scruggs (herein collectively referred to as “defendants”). The motion is opposed by
plaintiff, Nolan C. Davis, Sr.
For the following reasons, the motion is GRANTED and plaintiff’s in forma paruperis
status is hereby REVOKED.
I.
BACKGROUND
Plaintiff, a former inmate at Allen Correctional Center, filed this suit under 42 U.S.C. §
1983 seeking damages for violation of his constitutional rights for exposure to second hand
tobacco smoke. At the time suit was filed, June 18, 2010, plaintiff sought leave to proceed in
forma pauperis (“IFP”). Docs. 2, 6. By Order dated July 17, 2012, this court granted his request
and ordered that the sum of $11.17 be paid as an initial partial filing fee and that plaintiff make
monthly payments of twenty percent of the preceding month’s income in his prison account until
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the total fee of $350 was paid in full. Doc. 8. As of this date, plaintiff has paid a total of
$11.17. 1
In the motion before the court defendants argue that Davis has abused his pauperis status
by filing multiple frivolous lawsuits and should not be allowed to proceed IFP because he has
accumulated least three strikes under 28 U.S.C. § 1915(g). They urge the court to revoke
plaintiff’s IFP status and order that he pay the remainder of the filing fee in order to proceed with
this lawsuit.
Davis opposes the motion arguing that, when he filed the current lawsuit, he only had two
prior suits that were dismissed under 28 U.S.C. § 1915(g). He contends that at the time this suit
was filed a third lawsuit that was dismissed by the district court for failing to state a claim was
on appeal and therefore not a final judgment. He argues that even though the appellate court
affirmed the third dismissal, he had not accumulated three strikes when this lawsuit was filed.
Thus, he contends that he was properly allowed to proceed IFP. Davis also argues that his IFP
status should not be revoked because he is in imminent danger of serious physical injury from
exposure to second hand smoke and 28 U.S.C. § 1915(g) does not bar a prisoner from
proceeding IFP under those circumstances.
II.
LAW AND ANALYSIS
Section 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
1
The docket sheet shows one entry on August 21, 2012 from the financial department with the notation
“confirmation of receipt of payment from Nolan Davis in the amount of $11.17.”
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be granted, unless the prisoner is under imminent danger of serious
physical injury.
Defendants submit that plaintiff has accumulated strikes in the following three cases:
(1)
Davis v. Smith, No. 1:11-cv-01676 (W.D. La.). On April 16, 2012,
judgment was entered denying and dismissing plaintiff’s case as
frivolous and failing to state a claim under 28 U.S.C. §
1915(e)(2)(B). No appeal was taken from this dismissal.
(2)
Davis v. Gusman, No. 2:09-07195 (E.D. La.). On April 28, 2010,
judgment was entered dismissing plaintiff’s complaint as legally
frivolous and failing to state a claim under 28 U.S.C. § 1915(e)(2)
and 42 U.S.C. § 1997e(c)(1). An appeal was dismissed for lack of
jurisdiction on September 2, 2010. Davis v. Gusman, No. 1030400 (5th Cir. 9/2/2010). Writs were denied on January 10, 2011.
Davis v. Gusman, 131 S.Ct. 923 (2011).
(3)
Davis v. Michot, No. 1:12-00019, (W.D. La.). On January 7, 2013,
judgment was entered denying and dismissing plaintiff’s case for
failing to state a claim under 28 U.S.C. § 1915(e)(2)(B). This
judgment was affirmed on August 2, 2013 on appeal. Davis v.
Michot, 537 Fed. App’x. 566 (5th Cir.2013). Davis sought no
further review.
Dismissals of all three actions for frivolity and failure to state a claim are now final.
Since the third dismissal noted above was rendered after plaintiff filed the present lawsuit
this court must decide if this dismissal should be considered a strike which would put plaintiff’s
IFP status in jeopardy.
Plaintiff relies on cases from the Third and Tenth Circuits which have held that a
dismissal does not qualify as a strike for § 1915(g) purposes unless and until a litigant has
exhausted or waived his or her appellate rights. See Lopez v. Dept. of Justice, 228 Fed. App’x
218 (3rd Cir. 2007), Jennings v Natrona Cnty. Det. Ctr. Med. Facility, 175 F. 3d 775 (10th Cir.
1999). Defendants, on the other hand, call our attention to the case of McGrew v. Barr, 2011
WL 1107195 * 4 (M.D. La. 3/22/11) (Trimble, J.) where the court, relying on Adepegba v.
Hammons, 103 F.3d (5th Cir. 1996), found that plaintiff’s accumulation of three strikes “albeit
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two (2) of which were after he filed the instant lawsuit” required revocation of his IFP status.
The court noted that, in Adepegba, the Fifth Circuit “explained that by adding Section 1915(g),
Congress determined that three qualifying dismissals constituted per se abuse of the i.f.p.
procedures and that the ‘three strikes’ provision merely codified an existing practice in the courts
designed to prevent prisoners from abusing the i.f.p. privilege.” McGrew at *3. The court
further noted that the statute requiring a prisoner to pay the filing fee is neither “novel nor penal”
and does not affect his or her access to the courts but simply puts them “on the same footing as
every other petitioner in federal court.” Id. at *2-3. In McGrew the court revoked plaintiff’s IFP
status and ordered that he pay the full filing fee with failure to do so resulting in the case being
stricken. Id. at *4.
Further, in Davis v. Michot, 537 Fed. App’x. 566, 568 (5th Cir.2013), the case in which
plaintiff accumulated his third strike, the Fifth Circuit stated, “[b]ecause [Davis] has now
accumulated at least three strikes, he may not proceed in forma pauperis in any civil action or
appeal while he is incarcerated or detained in any facility unless he is under imminent danger of
serious physical injury.” As noted previously, plaintiff did not seek writs from that judgment
and it is now final.
Like the court in McGrew we find that plaintiff has accumulated three strikes and that
IFP status should be revoked even though the final strike was declared after he filed this
litigation. We also find that plaintiff has not alleged facts to show that he is in “imminent danger
of serious physical injury.” See 28 U.S.C. § 1915(g). In his opposition to the motion, plaintiff
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avers that he is in imminent danger of physical harm from “exposure to second hand smoke to
his preexisting and future health” but provides no further particulars. 2 Doc. 147, p. 4-5.
Accordingly,
IT IS ORDERED that defendants’ Motion to Revoke Plaintiff’s In Forma Pauperis
Status [doc. #142] is GRANTED and the Order granting plaintiff in forma pauperis status [doc.
8] is hereby REVOKED and RESCINDED;
IT IS FURTHER ORDERED that plaintiff pay the full filing fee of $350.00 within
forty-five (45) days from the date of this order, with credit for the amount that he has already
paid. FAILURE TO PAY THE FULL FILING FEE WILL RESULT IN THIS CASE
BEING STRICKEN FROM THE RECORD.
THUS DONE this 15th day of April, 2015.
2
See Foster v. Unidentified Party, 34 Fed. App’x 963 (5th Cir. 2002) finding that the district court did not err in
finding that plaintiff who alleged that defendants negligently subjected him to second hand smoke by failing to
enforce a no-smoking policy had failed to demonstrate that he was in “imminent danger of serious physical injury.”
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