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Luckett v. National Personnel Records CTR.

United States District Court, M.D. Louisiana

September 20, 2019

TONNIE C. LUCKETT (#99443)
v.
NATIONAL PERSONNEL RECORDS CTR., ET AL.

          ORDER

          ERIN WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE.

         This matter comes before the Court on Plaintiff’s Motion to Proceed In Forma Pauperis.[1]

         Pro se plaintiff, Tonnie C. Luckett (“Plaintiff”), an inmate incarcerated at the Louisiana State Penitentiary (“LSP”), Angola, Louisiana, filed this action pursuant to 42 U.S.C. § 1983 against National Personnel Records Ctr., Washington D.C. Department of Veterans Affairs, Hunter Medical Systems, Inc., Adjutant General, and Louisiana Department of Veterans Affairs (“Defendants”), alleging his Constitutional rights were violated in connection with a request for documents pertaining to his blood type.[2]

         The statute applicable to the granting by federal courts of in forma pauperis status to inmates in civil proceedings makes clear that Plaintiff is not entitled to proceed as a pauper in this case. 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.

         Plaintiff has, on three or more prior occasions while incarcerated, brought actions or appeals in a federal district court that have been dismissed as frivolous, malicious, or for failure to state a claim.[3]

         An inmate who has had three prior “strikes” may still qualify to file a new civil action in forma pauperis upon a showing of imminent danger. However, this exception does not provide a basis to avoid application of the three-strikes rule based on allegations of past harm.[4] An inmate who claims the benefit of this exception must also show that the danger faced rises to the level of exposure to a “serious physical injury.”[5] The possibility of serious injury at some indefinite point in the future does not constitute the type of emergency envisioned in the exception for imminent danger.[6] The imminent danger claimed by the inmate, moreover, must be real, and not merely speculative or hypothetical.[7]

         Plaintiff filed his Complaint in this matter on June 19, 2019.[8] Plaintiff alleges that the named entities are wrongfully refusing to release records pertaining to Plaintiff’s blood type. Plaintiff’s Complaint is based solely on an inability to obtain records regarding his blood type. Plaintiff does not allege any danger regarding the inability to obtain information regarding his blood type, so Plaintiff has not established any imminent danger as is required to benefit from the exception to the three strikes rule. Further, Plaintiff has filed actions based on these same alleged wrongful acts on at least two prior occasions.[9] One of those suits was dismissed as legally frivolous.[10] Plaintiff’s repeated attempts to litigate this issue also subject this case to dismissal as malicious.[11]

         The express purpose of 28 U.S.C. § 1915(g) is to deter frivolous prisoner filings in federal courts.[12] “The limited exception provided in subsection (g) for imminent danger of serious physical injury operates as a safety valve to ensure that, despite the filing of frivolous lawsuits in the past, an abusive inmate facing future imminent serious physical injury by prison officials will still be able to pursue a judicial remedy to prevent such injury.”[13] Plaintiff fails to show that his circumstances warrant an exception. Because Plaintiff is barred from proceeding in forma pauperis in this case, he is required to pay the full amount of the Court’s filing fee.

         Accordingly, IT IS ORDERED Plaintiff’s Motion to Proceed In Forma Pauperis[14] is DENIED.

         IT IS FURTHER ORDERED that Plaintiff is granted twenty-one (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 may result in the dismissal of Plaintiff’s action without further notice from the Court.

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