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Davis v. Granger

United States District Court, W.D. Louisiana, Lake Charles Division

April 15, 2015

NOLAN C. DAVIS, SR.,
v.
DANIEL GRANGER, ET AL

MEMORANDUM ORDER

KATHLEEN KAY, Magistrate Judge.

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 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 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. § ...

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