United States District Court, M.D. Louisiana
WILDER-DOOMES, UNITED STATES MAGISTRATE JUDGE
se Plaintiff, an inmate confined at the Elayn Hunt
Correctional Center (“EHCC”), St. Gabriel,
Louisiana, filed this action pursuant to 42 U.S.C. §
1983 against Lt. Allen Stark, Sgt. Kendrick Williams, Col.
Thompson and Warden Hooper, complaining that he was subjected
to excessive force on both November 8 and 9, 2017, and that
he had previously informed Defendant Hooper regarding
retaliatory threats of harm made by security officers.
Plaintiff further complains that he has not received pain
medication that was prescribed to him after the incident and
that he continues to receive threats of harm from Defendants,
who are still allowed to “come around” him.
Plaintiff has neither paid the Court's filing fee nor
requested leave to proceed as a pauper herein.
were Plaintiff to seek leave to proceed as a pauper in this
proceeding, the statute applicable to the granting by federal
courts of in forma pauperis status to inmates in
civil proceedings compels the conclusion that Plaintiff is
not entitled to proceed as a pauper in this case. This
statute, 28 U.S.C. § 1915, provides, in pertinent part:
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). See also Adepegba v.
Hammons, 103 F.3d 383 (5th Cir. 1996).
review of the records of this Court reflects that Plaintiff
has, on three or more prior occasions while incarcerated,
brought actions or appeals in the federal courts that have
been dismissed as frivolous, malicious, or for failure to
state a claim. Plaintiff apparently concedes that he has
amassed three strikes because he seeks to proceed as a pauper
in this case under the “imminent danger”
exception to the three strikes provision. As discussed below,
however, the Court finds that this exception is inapplicable
in this case.
evaluating whether an inmate meets the test for alleging an
“imminent danger of serious physical injury, ”
the Court considers the allegations, not at the time of the
incident complained of by Plaintiff, but at “the time
that he seeks to file his suit in district court or seeks to
proceed with his appeal or files a motion to proceed
IFP.” Banos v. O'Guin, 144 F.3d 883 (5th
Cir. 1998). General allegations not grounded in specific
facts indicating that serious physical injury is in fact
imminent are not sufficient to invoke the exception to §
1915(g). See Ruston v. Dallas County, 2004 WL
2512232 (N.D. Tex. Nov. 5, 2004). See also Marion v.
Stanley, 2011 WL 3880541 (E.D. Tex. July 27, 2011):
The courts have stated that in order to meet the imminent
danger requirement of § 1915(g), the threat must be
“real and proximate.” Ciarpaglini v.
Saini, 352 F.3d 328, 330 (7th Cir. 2003). Allegations of
past harm do not suffice; the harm must be imminent or
occurring at the time that the complaint or notice of appeal
is filed, and the exception refers to “a genuine
emergency” where “time is pressing.”
Heimerman v. Litscher, 337 F.3d 781, 782 (7th Cir.
2003). In passing the statute, Congress intended a safety
valve to prevent impending harms, not those which had already
occurred. See Abdul-Akbar v. McKelvie, 239 F.3d 307,
315 (3rd Cir. 2001). In that case, the Third Circuit rejected
a claim that allegations of having been sprayed with pepper
spray, combined with a claim that prison officials engaged in
“continuing harassment, plots to hurt or kill him, and
other forms of retaliation, ” sufficiently alleged
Id. at *4.
the foregoing analysis in connection with Plaintiff's
claims asserted in the instant Complaint, it appears that the
specific events complained of herein occurred principally on
October 8 and 9, 2017 when Plaintiff was allegedly subjected
to excessive force by Defendant Stark and several other EHCC
officers. Whereas Plaintiff complains of alleged continuing
threats of harm thereafter and asserts that he fears for his
safety, these allegations are conclusory and do not support a
finding that he faces an actual “imminent danger of
serious physical injury.” To the contrary, it appears
clear that Plaintiff's Complaint is principally asserting
a claim regarding the events of several weeks previously.
Thus, Plaintiff's allegations are similar to those that
were found to be insufficient in the case cited above,
Abdul-Akbar v. McKelvie, supra, where the inmate
plaintiff was essentially complaining of past incidents of
alleged excessive force and only of continuing verbal threats
and harassment which were found to not meet the
“imminent danger” exception to the 28 U.S.C.
§ 1915(g). Accordingly, Plaintiff has failed to meet the
test for proceeding in forma pauperis in this case.
See also King v. Livingston, 212 Fed.Appx. 260 (5th
Cir. 2006) (finding to be insufficient allegations by
Plaintiff that “he ha[d] been assaulted several times
by the defendants and other inmates and … defendants
ha[d] attempted to cause him serious physical injury from the
time of Hurricane Rita to the present”).
in the alternative, the courts have concluded that the
“imminent danger” exception to the three strikes
rule does not relieve Plaintiff of the requirement that he
exhaust his administrative remedies before seeking to proceed
in federal court, and Plaintiff has clearly failed to exhaust
his administrative remedies relative to the claims asserted
herein. See Marion v. Stanley, 2011 WL
3880541, *5 (E.D. Tex. July 27, 2011) (finding that
Plaintiff's claim of imminent danger was not supportable
and that, in any event, “[i]t should be noted that
payment of the filing fee would not affect … the
requirement that administrative remedies be fully exhausted
prior to bringing the lawsuit”). Thus, even if
Plaintiff were allowed to proceed in forma pauperis
in this case, his civil action would nonetheless be subject
to dismissal as unexhausted. Specifically, whereas 28 U.S.C.
§ 1915(a) may allow an indigent litigant to litigate an
action in forma pauperis in federal court without
the necessity of prepaying fees and costs, subsection
(e)(2)(B)(ii) of that statute prevents abuse of the privilege
by authorizing the court to “dismiss the case at any
time if the court determines that … the action
… fails to state a claim on which relief may be
granted, ” as when it is clear that the exhaustion
requirement has not been satisfied. See Wetzel v.
Goodwin, 2015 WL 965688, *3 (W.D. La. March 3, 2015).
See also Calton v. Baker, 2015 WL 456573, *3-4 (E.D.
Tex. Jan. 30, 2015) (finding that the exigent circumstances
alleged in the three-strike Plaintiff's Complaint, which
was filed four days after the incident complained of, did not
excuse his clear failure to exhaust administrative remedies).
In the instant case, it is clear from the face of
Plaintiff's Complaint that the claims asserted herein are
unquestionably unexhausted and would be subject to dismissal
for that reason.
on the foregoing, the Court finds that Plaintiff is barred
from proceeding in forma pauperis in this case and
that he is required to pay the full amount of the Court's
filing fee without the benefit of periodic installment
IS ORDERED that Plaintiff is granted 21 days from
the date of this Order within which to pay $400.00, the full
amount of the Court's filing fee. The filing fee must be
paid in full in a single payment. No. partial payments will
be accepted. Failure to pay the Court's filing fee within
21 days ...