Opinion
Civil Action 23-0734
06-27-2023
WESLEY SINCLAIR RICKS v. STATE OF LOUISIANA, ET AL.
SECTION P
TERRY A. DOUGHTY JUDGE
MEMORANDUM ORDER
Kayla Dye McClusky United States Magistrate Judge
Plaintiff Wesley Sinclair Ricks, a prisoner at Louisiana State Penitentiary proceeding pro se and in forma pauperis, filed this proceeding on approximately June 1, 2023, under 42 U.S.C. § 1983. [doc. # 1].
Under 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.”
Federal district courts have, in at least three separate proceedings that Plaintiff filed while he was incarcerated or detained, dismissed Plaintiff's civil rights complaints as either frivolous, malicious, or for failure to state a claim on which relief can be granted:
° Wesley S. Ricks v. District Attorney 4th Judicial District Court, et al., 3:13-cv-2831 (W.D. La. Jan. 9, 2014) (dismissing plaintiff's civil rights complaint “as frivolous and for failing to state a claim for which relief may be granted ....”);
° Wesley S. Ricks v. Daniel J. Ellender, et al., 3:17-cv-0027 (W.D. La. July 18, 2017) (dismissing plaintiff's civil rights complaint because “all Defendants are
immune from suit and as frivolous and for failing to state a claim for which relief may be granted.”);
° Wesley S. Ricks v. Sydney A. Johnwell, et al., 3:17-cv-0400 (W.D. La. July 18, 2017) (dismissing plaintiff's civil rights complaint “as frivolous, for failing to state a claim on which relief may be granted, and for seeking money damages against defendants who are immune from suit ....”);
° Wesley S. Ricks v. United States Marshals, et al., 1:18-cv-21047 (S.D. Fla. May 25, 2018) (dismissing proceeding with prejudice and adopting the magistrate judge's recommendation, in which the magistrate judge found that plaintiff previously “had three § 1983 actions that were dismissed as frivolous, malicious, or for failure to state a claim upon which relief can be granted ....”).
Further, the Court does not find that Plaintiff was in imminent danger of serious physical injury when he filed this proceeding or when he applied to proceed in forma pauperis.Plaintiff primarily claims that he “was charged with a capital offense and noncapital felony in the same bill of indictment ....” [doc. # 5, p. 3].
See Banos v. O'Guin, 144 F.3d 883, 884 (5th Cir. 1998) (“[A] prisoner with three strikes is entitled to proceed with his action or appeal only if he is in imminent danger 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.”) (emphasis added).
Accordingly, IT IS ORDERED that the Memorandum Order granting Plaintiff in forma pauperis status, [doc. # 7], is REVOKED AND RESCINDED.
IT IS FURTHER ORDERED that for Plaintiff's claims to remain viable, Plaintiff must pay the full $402.00 filing fee in one lump sum within twenty-one (21) days from the date of this Memorandum Order. FAILURE TO PAY THE FULL FILING FEE WILL RESULT IN THE PLEADINGS BEING STRICKEN FROM THE RECORD.
IT IS FURTHER ORDERED that considering the revocation of the Memorandum Order granting Plaintiff in forma pauperis status, the Clerk of Court shall instruct the Prison Accounts Officer to discontinue automatically withholding funds from Plaintiff's inmate account for this proceeding only.