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Smith v. State

United States District Court, M.D. Louisiana

July 28, 2015

ANTHONY C. SMITH
v.
THE STATE OF LOUISIANA, ET AL

RULING ON MOTION TO PROCEED IN FORMA PAUPERIS AND ORDER TO PAY FULL FILING FEE

STEPHEN C. RIEDLINGER, UNITED STATES MAGISTRATE JUDGE

Before the court is the plaintiff’s Motion to Proceed in Forma Pauperis. Record document number 2.

Pro se plaintiff, an inmate confined at Rayburn Correctional Center, Angie, Louisiana, filed this action pursuant to 42 U.S.C. § 1983 against the State of Louisiana, the Nineteenth Judicial District Court, Nineteenth Judicial District Court Judges Bonnie Jackson and Trudy White, the East Baton Rouge Parish Prison, the East Baton Rouge Parish Prison Medical Department, the Baton Rouge City Police Department and Tracy Hatcher. Plaintiff alleged various claims related to being arrested for aggravated second degree battery and aggravated battery, being charged with second degree kidnaping and forcible rape, and things that occurred before and during the trial on those charges. Plaintiff seeks $850 billion for emotional damages caused by an illegal arrest, indictment, prosecution and trial.

Section 1915(g) of Title 28 of the United States Code 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.

28 U.S.C. § 1915(g).

In Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996), the Fifth Circuit Court of Appeals held that: (1) section 1915(g) applies to cases pending on the effective date of the statute; and, (2) a suit dismissed prior to the effective date of the statute on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, is considered within the ambit of the “three strikes” provision of section 1915(g). Dismissals as frivolous in the district courts or the court of appeals count for the purposes of the statute. Id. However, dismissals later reversed are not to be counted as a strike. Id. By contrast, the frivolous appeal of a lower court’s dismissal as frivolous counts twice. Id.

Plaintiff has, on three or more than prior occasions, while incarcerated, brought an action in federal court that was dismissed as frivolous or for failure to state a claim.[1] Section 1915(g) contains an exception that allows prisoners whose privileges have been revoked to proceed in forma pauperis in cases involving imminent danger of serious physical injury. Plaintiff’s claims do not fall under the exception.

Accordingly, the plaintiff’s Motion to Proceed in Forma Pauperis is denied.

Furthermore;

IT IS ORDERED that the plaintiff is granted 21 days from the date of this order to pay the court’s filing fee in the amount of $400.

The filing fee must be paid in full in a single payment. No partial payment of fees will be accepted. Failure to pay the filing fee within 21 days shall result in the dismissal of the plaintiff’s complaint without prejudice.


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