Opinion
CIVIL ACTION NO. 19-642-SDD-RLB
10-18-2019
DERRICK SCOTT (#126372) v. DARREL VANNOY, ET AL.
ORDER
This matter comes before the Court on the plaintiff's Complaint (R. Doc. 1).
The 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.
The 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) 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.
A 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.
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. 2009). Finally, the Court hereby takes judicial notice of proceedings before this Court in Derrick Scott v. Trish Foster, et al., Civil Action No. 13-0665-JJB-RLB (M.D. La.), wherein both this Court and the Fifth Circuit Court of Appeals found that the plaintiff had accumulated three strikes. --------
An 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).
The 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.
At 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.
The 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.'")
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. 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.
Signed in Baton Rouge, Louisiana, on October 18, 2019.
/s/ _________
RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE