Opinion
No. 3:17-cv-00249
01-03-2018
RALPH T. O'NEAL, III, Petitioner, v. SPECIAL AGENT-IN-CHARGE, Knoxville Office of the F.B.I., Respondent.
REEVES/GUYTON
MEMORANDUM OPINION
Petitioner Ralph T. O'Neal, III is a federal prisoner currently incarcerated at the United States Penitentiary, Terre Haute. Before the Court is Petitioner's application to proceed in forma pauperis [Doc. 1] and petition for a writ of mandamus [Doc. 2]. For the reasons set forth below, Petitioner's motion for leave to proceed in forma pauperis [Doc. 1] will be DENIED, no process shall issue, and this action will be DISMISSED without prejudice to Petitioner filing a fee-paid petition for a writ of mandamus, pursuant to the three-strike rule set forth in 28 U.S.C. § 1915(g).
Section 1915(g) of the Prison Litigation Reform Act of 1996 ("PLRA") provides as follows:
In no event shall a prisoner bring a civil action [in forma pauperis] . . . if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action . . . 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 physical injury.28 U.S.C. § 1915(g).
While incarcerated, Petitioner has filed at least three prior civil rights actions that were dismissed for a failure to state a claim. See Ralph O'Neal v. Blount County Detention Center, et al., Civil Action No. 3:08-cv-456 (E.D. Tenn. Nov. 20, 2008) (dismissed for failure to state a claim); Ralph O'Neal v. Kris Mynatt, Civil Action No. 3:08-cv-491 (E.D. Tenn. December 19, 2008) (dismissed as frivolous and for failure to state a claim); Ralph T O'Neal, III v. Jack Stockton, et al., Civil Action No. 3:08-cv-467 (E.D. Tenn. December 19, 2008) (dismissed as frivolous and for failure to state a claim).
Although Petitioner has filed a petition for the issuance of a writ of mandamus, he is still ineligible to proceed in forma pauperis, unless his petition demonstrates that he faces imminent danger of serious physical injury. 28 U.S.C. § 1915(g); see also Bruce v. Samuels, 136 S.Ct. 627, 630 n.3 (2016) ("We assume without deciding that a mandamus petition qualifies as a 'civil action' or 'appeal' for purposes of 28 U.S.C. § 1915(b)."); Gross v. Experian, No. 10-cv-150-GFVT, 2015 WL 1038835, at *3-*4 (E.D. Ky. Mar. 10, 2015) (noting that mandamus actions are civil proceedings to which the PLRA filing fee requirements apply); McGore v. Mich. Parole Bd., No. 1:09-CV-922, 2009 WL 3429102, at *1 (W.D. Mich. Oct. 23, 2009) (denying pauper status to prisoner who had filed a petition for writ of mandamus because had previously acquired three strikes under § 1915(g)).
Nothing in Petitioner's petition suggests that he was in imminent danger at the time of filing. Therefore, Petitioner must prepay the entire $400.00 filing fee to proceed in this action. Accordingly, Petitioner motion for leave to proceed in forma pauperis [Doc. 1] will be DENIED, and Petitioner's petition will be DIMISSED without prejudice to Petitioner filing a fee-paid petition for a writ of mandamus, pursuant to the three-strike rule of 28 U.S.C. § 1915(g).
The Court CERTIFIES that any appeal from this action would not be taken in good faith and would be totally frivolous.
AN APPROPRIATE ORDER WILL ENTER.
/s/ _________
UNITED STATES DISTRICT JUDGE