United States District Court, M.D. Louisiana
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on the plaintiff's
Complaint (R. Doc. 1).
pro se plaintiff, an inmate incarcerated at
Louisiana State Penitentiary (“LSP”), Angola,
Louisiana, filed this action pursuant to 42 U.S.C. §
1983 against Warden Vannoy and other prison officials
alleging that the defendants have been deliberately
indifferent to his health and safety by intentionally placing
him in a living area with three inmates who are on the
plaintiff's enemy list.
plaintiff has not paid the required filing fee and the
statute applicable to the granting by federal courts of
in forma pauperis status to inmates in civil
proceedings makes clear that the plaintiff is not entitled to
proceed as a pauper in this case. 28 U.S.C. § 1915(g)
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.
review of the records of this Court reflects that the
plaintiff has, on three or more prior occasions while
incarcerated, brought actions or appeals in the federal court
that have been dismissed as frivolous, malicious, or for
failure to state a claim.
inmate who has had three prior “strikes, ” but
nonetheless wishes to commence a new civil action in forma
pauperis, must show that he was under imminent danger at the
time of filing; the exception does not provide a basis to
avoid application of the three-strikes rule based on
allegations of past harm. Banos v. O'Guin, 144
F.3d 883, 884-885 (5th Cir. 1998). 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.” 28 U.S.C. § 1915(g). The
imminent danger claimed by the inmate, moreover, must be
real, and not merely speculative or hypothetical. Davis
v. Stephens, No. 14-10808, 2015 WL 110445 (5th Cir. Jan.
8, 2015) (allegation that plaintiff might be seriously
injured at an indefinite point in the future because he has
been required to wear shoes that are the wrong size and are
damaged is insufficient to establish that he was in imminent
danger of serious physical injury at the relevant times).
plaintiff asserts that he was under imminent danger at the
time of the filing of his Complaint because unspecified
officials told him that they were going to let his enemies do
their dirty work for them, and his unnamed enemies have
threatened to harm him at the first opportunity. Even
construing the plaintiff's allegations liberally, the
facts relied upon by plaintiff do not establish that he was
under imminent danger of serious physical injury when he
filed his Complaint.
least one court has granted pauper status based on imminent
danger due to placement near inmate enemies; however, the
plaintiff has not made a similar showing as the inmate
plaintiff in that case. In Ashley v. Dilworth, 147
F.3d 715 (8th Cir. 1998) the plaintiff first notified the
defendants that he was being placed near inmates on his enemy
list in 1993. In June of 1996, the defendants threatened to
transfer him near an enemy and intended for him to be harmed.
The next month he was actually placed near his enemy and was
attacked with a sharpened screwdriver. The plaintiff again
notified the defendants in May of 1997 that he was placed
near listed enemies, and the following month he was attacked
by the same enemy with a butcher knife. The plaintiff's
allegations were supported with documentary evidence and his
complaint was filed shortly after the last attack. Under
these circumstances, the court concluded that Ashley met the
imminent danger exception.
plaintiff herein has not made a similar showing. Furthermore,
the plaintiff's allegations of future harm do not suffice
to show imminent danger of serious physical injury. See
Davis v. Stephens, No. 14-10808, 2015 WL 110445 (5th
Cir. Jan. 8, 2015). Moreover, 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. See Heimerman v. Litscher, 337
F.3d 781, 782 (7th Cir. 2003) (holding that “the
exception refers to a ‘genuine emergency' where
‘time is pressing.'”)
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. Here, the
plaintiff fails to show that his circumstances warrant an
exception to be made. Notably, the instant ruling does not
prohibit the plaintiff from pursuing his claims in federal
court; it only denies him the privilege of proceeding without
the payment of filing fees. Accordingly, because the
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 that the 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 shall result in the
dismissal of the plaintiff's action without further
notice from the Court.
 Cases or appeals filed by the
plaintiff which have been dismissed by the federal courts as
frivolous or for failure to state a claim include, but are
not limited to, Derrick Scott v. James M. LeBlanc, et
al., Civil Action No. 12-0239-BAJ-SCR (M.D., La.),
Derrick Scott v. Burl Cain, Civil Action No.
12-0412-JJB-DLD (M.D., La.), and Derrick Scott v. Officer
Haney, et al., Civil Action No. 12-0439-JJB-DLD (M.D.,
La.). The first two referenced cases were dismissed because
the plaintiff's Complaints made clear that he had failed
to exhaust administrative remedies as mandated by 42 U.S.C.
§ 1997e, and the United States Court of Appeals for the
Fifth Circuit has concluded that the dismissal of an action
for failure to state a claim is appropriate when it is clear
from the face of a plaintiff's Complaint that he has not
exhausted administrative remedies. See Carbe v.
Lappin, 492 F.3d 325, 328 (5th Cir. 2007). In addition,
such dismissals may be treated as “strikes”
within the context of 28 U.S.C. § 1915(g). See
Emmett v. Ebner, 423 Fed.Appx. 492 (5th Cir. 2011);
Martinez v. Bus Driver, 344 Fed.Appx. 46 (5th Cir.
2009); Johnson v. Kukua, 342 Fed.Appx. 933 (5th Cir.