Case Information
*1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA LAKE CHARLES DIVISION
HENRY JAMES CIVIL ACTION NO. 05-0928-LC VS. SECTION P
JIM ROGERS, WARDEN JUDGE MINALDI
MAGISTRATE JUDGE WILSON REPORT AND RECOMMENDATION
Before the court is the petition for writ of filed in forma pauperis by pro se petitioner Henry James on May 26, 2005. James is an inmate in the custody of Louisiana’s Department of Public Safety and Corrections. He is incarcerated at the C. Paul Phelps Correctional Center, DeQuincy, Louisiana.
This matter has been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. §636 and the standing orders of the court.
STATEMENT OF THE CASE The petition, its accompanying memorandum, and the published jurisprudence of the State of Louisiana establish the following facts: On March 10, 2004, petitioner filed a petition for damages entitled Henry James v. Master
Sergeant Poussan, et al. , in the Thirty-sixth Judicial District Court, Beauregard Parish. Petitioner’s request to proceed in forma pauperis was granted and the case was assigned docket number C20040227.
2. *2 On June 8, 2004, the defendants, relying upon the provisions of La. R.S.15:1186, [1] filed a
Motion to Amend the Order granting in forma pauperis status. On June 21, 2004, the trial court, in accordance with the statute, signed a judgment ordering petitioner to pay court costs of $300 and granting an automatic stay of the proceedings pending the full payment of these costs.
3. On June 30, 2004, petitioner filed a “State Writ of Habeas Corpus” challenging the ruling
of the trial court. On July 1, 2004, the trial court denied relief. On July 30, 2004 , petitioner filed an application for writs in the Third Circuit Court of
Appeals. The writ application was assigned Docket Number 04-01037-CW. On August 11, 2004, petitioner filed a Supplemental Writ. On October 29, 2004, petitioner’s writ application was denied.
*3 5. On November 4, 2004, petitioner filed a writ application in the Louisiana Supreme Court.
This writ application was given docket number 2004-CP-3027. On May 13, 2005, the writ application was denied. See Henry James v. Master Sergeant Poussan, et al. , 2004-3027 (La. 5/13/2005), 902 So.2d 1016. On May 26, 2005, petitioner filed the instant pleading and framed the issue at bar as follows:
“Whether or not a state may constitutionally require that an indigent prisoner in a civil case pay a filing fee before permitting him to file in one of its courts.” He concluded his petition by arguing “...that the filing fee provision of LSA R.S.15:1186(B)(2)(a)(b)(c) deprives him his right to a meaningful ‘equal access’ of the courts, in violation of the equal protection clause.” He prayed that the statute in question be declared unconstitutional and that he be allowed to proceed with his petition for damages in the Thirty-sixth Judicial District Court without having to pay court costs in advance.
LAW AND ANALYSIS
Petitioner chose to file the instant suit pursuant to the provisions of 28 U.S.C. §2254 which provides in pertinent part: “The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” In Preiser v. Rodriguez , 411 U.S. 475, 484 (1973), the Court noted, “It is clear . . . that the essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and that the traditional function of the writ is to secure release from illegal custody.” (emphasis supplied.)
Petitioner has not alleged that he is “in custody in violation of the Constitution or laws or *4 treaties of the United States.” He claims instead that a Louisiana civil procedure statute “deprives him his right to a meaningful ‘equal access’ of the courts, in violation of the equal protection clause.” Nor does petitioner seek his immediate release from custody or relief from any judgment authorizing his future custody.
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts provides for prompt review and examination of habeas petitions by the court and further states, “If it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified.” Citing Allen v. Perini , 424 F.2d 134, 141 (6 th Cir. 1970), the Advisory Committee Notes following Rule 4 state, “...under § 2243 it is the duty of the court to screen out frivolous applications and eliminate the burden that would be placed on the respondent by ordering an unnecessary answer.”
Petitioner’s petition for habeas corpus is patently and manifestly frivolous; it is clear from the face of the pleadings that petitioner is not entitled to the writ of habeas corpus. [2] *5 ACCORDINGLY,
IT IS RECOMMENDED that this petition for habeas corpus be DENIED AND DISMISSED WITH PREJUDICE pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts since it plainly appears from the face of the petition and exhibits annexed to it that the petitioner is not entitled to a writ of .
Under the provisions of 28 U.S.C. Section 636(b)(1)(C) and Rule 72(b), parties aggrieved by this Recommendation have ten (10) business days from service of this Report and Recommendation to file specific, written objections with the Clerk of Court. A party may respond to another party’s objections within ten (10) days after being served with a copy of any objections or response to the District Judge at the time of filing.
Failure to file written objections to the proposed factual findings and/or the proposed legal conclusions reflected in this Report and Recommendation within ten (10) days following the date of its service, or within the time frame authorized by Fed.R.Civ.P. 6(b), shall bar an aggrieved party from attacking either the factual findings or the legal conclusions accepted by the District Court, except upon grounds of plain error. See, Douglass v. United Services Automobile Association , 79 F.3d 1415 (5th Cir. 1996).
THUS DONE AND SIGNED in Chambers at Lake Charles, Louisiana, this 8 th day of September, 2005.
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.” It thus appears that petitioner should be prohibited from litigating any subsequent civil action in form a pa upe ris .
[1] La. R.S. 15 :118 6 provides in part: “A. (2) If a prisoner brings a civil action or files an appeal or writ application in forma pauperis ... the prisoner shall still be required to pay the full amount of a filing fee. The court shall assess and, when funds exist, collect, as a partial payment of any court fees required by law, an initial partial filing fee of twenty percent of the greater of the average monthly deposits to the prisoner's account, or the average monthly balance in the prisoner’s account for the six-month period immediately preceding the filing of the petition, notice of appeal, or writ application. * * * B. (1 ) After p ayment of the initial p artial filing fee, as required b y Paragrap h (A)(2) of this Sectio n, the prisoner shall be required to m ake m onthly p ayments of twenty perc ent of the preceding month’s incom e cred ited to the priso ner’s account. The agency having custody of the prisoner shall forward payments from the prisoner’s account to the clerk of the co urt each time the amo unt in the account exceeds ten do llars until the filing fees are paid. In no event sha ll the filing fee collected exceed the amount of fees permitted by statute. (2)(a) The order granting a prisoner’s requ est to proceed in forma paupe ris automatically stays all proceedings, including any service of process, until all costs of court or fees due the clerk by the prisoner in this matter are paid. During the pendency of the stay the prisoner may not take any action to prosecute the suit, including but not limited to filing any pleadings, discovery, or motions other than a motion for voluntary dismissal or a motion to lift the stay because all costs have been paid. * * * (d) T he auto matic stay shall not apply only if the co urt makes a written finding that: (i) The suit is a proceeding for judicial review brought pursuant to R.S. 15:1177; (ii) The suit is a post-conviction relief or habeas corpus proceeding challenging the fact or duration of confinement in prison; or (iii) The inmate is in imminent danger of serious physical injury, the suit solely seeks injunctive relief to avoid the danger, and relief is available in the suit which will avert the danger...”
[2] Since petitioner filed this proceeding as a petition for under 28 U.S.C. § 2254, he was permitted to proceed in forma pauperis. [See Doc. 3]. Should he wish to pursue this claim in federal court, he should file the appropriate pleadings, including the appropriate in form a pa upe ris application. The undersigned notes that in the in form a pa upe ris application sub mitted with this habeas petition, the petitioner responded “N O” to the query, “Have you on any prior occasion, while incarcerated or detained in any prison, jail or other facility, brought an action in federal court that was dismissed on the grounds that it was frivolous, malicious, or failed to state a claim upon which relief could be granted?” [See Do c. 2]. A review of the records of this court reveals the follow ing: (1) In the matter of Henry Jam es, Jr. v. Terry Terrell, et al. , No. 2:94-cv- 00556, petitioner’s civil rights claim was dismissed with prejudice as frivolous on December 18, 1995 [Doc. 22]; (2) in the ma tter of Henry Jam es, Jr. v. Terry Terrell, et al. , No. 2:95-cv-00400, six out of seven civil rights claims asserted were dism issed with prejudice as frivolo us on N ovembe r 21, 199 5 [D oc.35]; (3) in the matter of Hen ry Jam es, Jr. v. B enigam Ga dne y, et al. No. 2:96-cv-0094 6, plaintiff’s civil rights claims were dismissed as frivolous on Ju ly 7, 1997 [Do c. 10]; and, finally, the court notes that (4) in the matter of Henry Jam es v. Kay B ates, et a l. , No. 3:96 -cv-00 027 on the docket of the United States District Court for the Middle District o f Louisiana, petitioner’s civil rights suit was also dismissed with prejudice as frivolo us on A pril 2, 1 996 . [Do c. 6]. The undersigned further notes that 28 U.S.C. §1 915 (g) provides, “In no event shall a priso ner 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