McGrew et al v. Goodwin et al

Filing 27

MEMORANDUM ORDER: The April 29, 2013, order granting McGrew in forma pauperis status (Doc. 9 ) is hereby REVOKED and RESCINDED. In order for this complaint and its associated motions and pleadings to remain viable, McGrew must pay the full filing fee of $400.00 (four hundred dollars) within fourteen (14) days from the date of this order. FAILURE TO PAY THE FULL FILING FEE WILL RESULT IN HIS PLEADINGS BEING DISMISSED AND STRICKEN FROM THE RECORD. Notice emailed to National Three Strikes List. Signed by Magistrate Judge Karen L Hayes on 8/13/2013. (crt,Haik, K)

McGrew et al v. Goodwin et al

Doc. 27

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
CARLOS A. McGREW
LA. DOC #413135
VS.

CIVIL ACTION NO. 5:13-cv-0738
SECTION P
JUDGE ELIZABETH E. FOOTE

WARDEN JERRY GOODWIN, ET AL. MAGISTRATE JUDGE KAREN L. HAYES
MEMORANDUM ORDER
Pro se plaintiff Carlos A. McGrew, an inmate in the custody of Louisiana’s Department
of Public Safety and Corrections, filed the instant civil rights complaint pursuant to 42 U.S.C.
§1983 on April 3, 2013. Therein, plaintiff, along with other inmates housed at the David Wade
Corrections Center (DWCC) complained of conditions of confinement at that prison. On April
25, 2013, plaintiff submitted an application to proceed in forma pauperis in which he denied,
under penalty of perjury, having brought any action in federal court as a prisoner, that was
ultimately dismissed as frivolous, malicious, or failing to state a claim for which relief may be
granted. [Doc. 5, ¶ 7] Based upon those assertions, plaintiff was permitted to proceed in forma
pauperis on April 29, 2013. [Doc. 9]
Notwithstanding plaintiff’s sworn assertion to the contrary, a review of the records of the
United States District Court for the Middle District of Louisiana reveals that on more than three
occasions, while a prisoner, McGrew filed civil actions which were dismissed as frivolous or for
failing to state a claim and, that he has been barred by that Court from proceeding in forma

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pauperis 1 pursuant to the provisions of 28 U.S.C. §1915(g) which 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.

Plaintiff is aware of this provision since, as noted above, it has been invoked to bar him
from proceeding in forma pauperis in the Middle District of Louisiana.
Plaintiff, along with numerous other inmates, have complained about the general
conditions of confinement at DWDD. Neither he nor his co-plaintiffs have alleged that he is in
imminent danger of serious physical injury. As the Third Circuit Court of Appeals has noted,
“‘[i]mminent’ dangers are those dangers which are about to occur at any moment or are
impending.” Abdul-Akbar v. McKelvie, 239 F.3d 307at 315 (3d Cir.2001) (citing Webster’s II
New Riverside University Dictionary 611 (1984)). A prisoner who has been sanctioned pursuant
to § 1915(g) is entitled to proceed only if he is in imminent danger “... at the time he seeks to file
his suit in district court...” Banos v. O’Guin, 144 F.3d 883, 884 (5th Cir. 1998). Thus, allegations
that a prisoner has faced danger in the past are insufficient to trigger the “imminent danger”
exception of §1915(g). Compare Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998).
Here, plaintiff offers nothing to establish immanent danger.
Further, plaintiff has attempted to perpetrate a fraud upon the Court by submitting a
fraudulent accounts statement and, by failing to alert the Court that he has accumulated more

1

See Carlos A. McGrew v. Marks Allen, Civil Action 3:12-cv-0227 and the civil actions
cited therein at footnote 1.
2

than three strikes and is thus ineligible to proceed in forma pauperis. Plaintiff is thus not
eligible to proceed in forma pauperis in this matter. Therefore,
The April 29, 2013, order granting McGrew in forma pauperis status [Doc. 9] is hereby
REVOKED and RESCINDED;
In order for this complaint and its associated motions and pleadings to remain viable,
McGrew must pay the full filing fee of $400.00 (four hundred dollars) within fourteen (14)
days from the date of this order. FAILURE TO PAY THE FULL FILING FEE WILL
RESULT IN HIS PLEADINGS BEING DISMISSED AND STRICKEN FROM THE
RECORD.
Further, McGrew is advised: FUTURE ATTEMPTS TO COMMIT A FRAUD UPON
THIS COURT WILL RESULT IN THE IMPOSITION OF ADDITIONAL SANCTIONS.
Finally, the Clerk of the Court is directed to send a copy of this Order to the Keeper of the
Three Strikes List, Tyler, Texas.
THUS DONE AND SIGNED in Chambers, in Monroe, Louisiana this 13th day of
August, 2013.

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