Ewing v. Frost

Filing 27

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 24 Report and Recommendations. Ordered that the Plaintiff's in forma pauperis status is hereby revoked. The Plaintiff must pay the filing fee and administrative fee within 30 days of the date of this Order. Signed by Chief District Judge Louis Guirola, Jr on 4/5/17. (JCH)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
RICKY RONNELL EWING
v.

PLAINTIFF
CAUSE NO. 1:16CV121-LG-RHW

DARLENA FROST

DEFENDANT

ORDER ADOPTING PROPOSED FINDINGS OF FACT AND
RECOMMENDATION AND REVOKING IN FORMA PAUPERIS STATUS
BEFORE THE COURT is the Proposed Findings of Fact and
Recommendation [24] entered by United States Magistrate Judge Robert H. Walker
in which he recommends that the in forma pauperis status of the plaintiff Ricky
Ronnell Ewing be revoked. Ewing has filed an Objection. After reviewing the
record in this matter and the applicable law, the Court finds that the Proposed
Findings of Fact and Recommendation should be adopted as the opinion of this
Court.
DISCUSSION
Ewing filed this lawsuit claiming that he was attacked by two other inmates
while incarcerated at the South Mississippi Correctional Institution. This Court
granted Ewing leave to proceed in forma pauperis on May 6, 2016. (Order, ECF No.
5). Judge Walker recommends revocation of Ewing’s in forma pauperis status,
because three other lawsuits filed by Ewing have now been dismissed. Ewing v.
Jone, No. 1:15cv254-HSO-JCG, was dismissed as malicious on February 1, 2016.
Ewing v. Cooley, No. 1:15cv277-HSO-JCG, was dismissed as frivolous on April 11,
2016. Claims asserted in Ewing v. Richie, No. 1:16cv90-HSO-JCG, were dismissed
for failure to state a claim, and a final judgment was entered on February 23, 2017.

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 . . . .
Ewing filed an Objection to Judge Walker’s Proposed Findings of Fact and
Recommendation, but he did not dispute Judge Walker’s finding that Section
1915(g) precludes him from proceeding in forma pauperis. He merely argues that
his lawsuit should not be dismissed for failure to exhaust administrative remedies.
Having conducted the required review of the issues presented, the Court
finds that Ewing has failed to show that the Section 1915(g) bar should not apply to
this lawsuit. The Court will adopt Judge Walker’s recommendation that Ewing’s in
forma pauperis status be revoked pursuant to 28 U.S.C. § 1915(g). Ewing must pay
the $350.00 filing fee plus the $50.00 administrative fee within thirty days of the
date of this Order to avoid dismissal of this lawsuit. Ewing is warned that failure
to timely pay these fees will result in an order of dismissal for failure to prosecute
pursuant to Fed. R. Civ. P 41(b) without further notice.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the Proposed
Findings of Fact and Recommendation [24] entered by United States Magistrate
Judge Robert H. Walker is ADOPTED as the opinion of this Court.
IT IS FURTHER ORDERED AND ADJUDGED that Ewing’s in forma
pauperis status is hereby REVOKED. Ewing must pay the Clerk of the Court the
required filing fee and administrative fee within thirty days of the date of this
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Order. Failure to do so will result in dismissal of this lawsuit for want of
prosecution under Fed. R. Civ. P. 41(b).
SO ORDERED AND ADJUDGED this the 5th day of April, 2017.

s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE

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