Opinion
CIVIL ACTION NO. 17-00164-JJB-EWD
06-21-2017
PRESTON G. DEMOUCHETTE, JR. (#90331) v. JAMES M. LeBLANC, ET AL.
ORDER
Before the Court are Plaintiff's Motion for a Writ of Mandamus pursuant to 28 U.S.C. § 1361 (R. Doc. 4) and Motion for Relief from a Judgment or Order pursuant to Fed . R. Civ. P. 60 (R. Doc. 8). In both of these Motions, Plaintiff challenges the Court's Order of April 11, 2017 (R. Doc. 3), which denied his Motion to Proceed In Forma Pauperis herein and directed him to pay the full amount of the Court's filing fee.
Plaintiff is not entitled to the relief requested. In accordance with 28 U.S.C. § 1915(g), this Court has properly concluded that Plaintiff is not entitled to proceed as a pauper in this case. This statute 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.See also Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996).
Inasmuch as Plaintiff has, while incarcerated, brought three or more prior actions that have been dismissed as frivolous, malicious or for failure to state a claim upon which relief may be granted, he is not entitled to proceed as a pauper herein. Accordingly,
Cases filed by Plaintiff, while incarcerated, that have been dismissed by the federal courts as frivolous or for failure to state a claim include, but are not limited to, Preston George_Demouchet, Jr. v. Ronald Bonvillian, et al., Civil Action No. 96-7332-FJP-SCR (M.D., La.), Preston George Demouchet, Jr. v. Bernard E. Boudreaux, et al., Civil Action No. 98-1063-RFD-MEM (W.D. La.), and Preston George Demouchette, Jr. v. Richard L. Stalder, et al., Civil Action No. 99-0419-TLM-PAT (W.D. La.). The United States Court of Appeals for the Fifth Circuit has concurred with this Court's determination that Plaintiff has amassed three "strikes" under 28 U.S.C. 1915(g). See Preston Demouchette v. James LeBlanc, No. 12-30947, and Preston Demouchetted, Jr. v. James LeBlanc, et al., No. 14-31254.
The Court finds that the allegations of the Complaint do not fall within the "imminent danger" exception to the statute. --------
IT IS ORDERED that Plaintiff's for a Writ of Mandamus pursuant to 28 U.S.C. § 1361 (R. Doc. 4) and Motion for Relief from a Judgment or Order pursuant to Fed . R. Civ. P. 60 (R. Doc. 8) are hereby DENIED.
Considering that the Court is denying Plaintiff's Motion for Relief from Judgment or Order, IT IS FURTHER ORDERED that Plaintiff's second Motion to Proceed In Forma Pauperis (R. Doc. 5) is DENIED AS MOOT.
IT IS FURTHER ORDERED that Plaintiff is granted fourteen (14) 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 filing fee within 14 days shall result in the dismissal of Plaintiff's action without further notice from the Court.
Signed in Baton Rouge, Louisiana, on June 21, 2017.
/s/ _________
JUDGE JAMES J. BRADY
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA