Opinion
CIVIL 1:05-cv-321-LG-RPM
11-22-2021
JAMES M. FERGUSON, #60446 PLAINTIFF v. ANDREW BALIUS and ALAN L. BOND DEFENDANTS
ORDER
LOUIS GUIROLA, JR. UNITED STATES DISTRICT JUDGE
BEFORE THE COURT is pro se Plaintiff James M. Ferguson's Motion [15] “to remove strike” filed in this closed § 1983 case. On June 22, 2021, Ferguson filed a signed version of his Motion. (See ECF No. 22).
The Prison Litigation Reform Act provides that a prisoner's privilege to proceed in forma pauperis (“IFP”) should be denied if he has, on three prior occasions during detention, had an action or appeal dismissed as frivolous, malicious, or for failure to state a claim. See 28 U.S.C. § 1915(g); Lomax v. Ortiz-Marquez, 140 S.Ct. 1721, 1723 (2020) (stating that this “has become known as the three-strikes rule”).
Ferguson filed this Complaint on June 30, 2005, alleging a constitutional violation for being charged with a frivolous indictment in state court. (See Mem. Dismissing Compl., at 1, ECF No. 10). On January 11, 2006, the Court dismissed Ferguson's Complaint, finding his allegations to be malicious and that any non-malicious claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994). (See id. at 34; see also J., ECF No. 11). The Court entered its Judgment the same day. (See J., ECF No. 11).
When Ferguson filed his Motion [15] to remove strike he also filed a Notice of Appeal. See Ferguson v. Balius, No. 21-60310 (5th Cir. 2021). Ferguson's request to 1 proceed in forma pauperis on appeal was denied based on his three-strikes. (See Order, ECF No. 24). On September 13, 2021, the Fifth Circuit dismissed Ferguson's appeal for want of prosecution because Ferguson failed to pay the appeal filing fee. (See J., ECF No. 26).
In his Motion [15] to remove strike, Ferguson is asking the Court to “expunge” this strike from his “file.” (Mot. at 1, ECF No. 15.) Ferguson provides no basis or authority for his request. Likewise, the Fifth Circuit dismissed Ferguson's simultaneously filed appeal. Ferguson's Motion is not well-taken and will be denied. Accordingly, IT IS THEREFORE ORDERED AND ADJUDGED that Ferguson's Motion [15, 22] to remove strike is DENIED.
SO ORDERED AND ADJUDGED. 2