O'Neal v. Special Agent-in-Charge, No. 3:2017cv00249 - Document 4 (E.D. Tenn. 2018)

Court Description: MEMORANDUM OPINION in support of the following Order dismissing case. Signed by District Judge Pamela L. Reeves on 1/3/18. (c/m to Ralph T O'Neal, III#18792-075 TERRE HAUTEFEDERAL CORRECTIONAL INSTITUTIONInmate Mail/ParcelsP.O. BOX 33TERRE HAUTE, IN 47808 ) (ADA)

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O'Neal v. Special Agent-in-Charge Doc. 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT KNOXVILLE RALPH T. O’NEAL, III, Petitioner, v. SPECIAL AGENT-IN-CHARGE, Knoxville Office of the F.B.I., Respondent. ) ) ) ) ) ) ) ) ) ) No. 3:17-cv-00249 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). Dockets.Justia.com 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). 2 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. ___________________________________ _ _ _ _ ______________________________________ UNITED STATES DISTRICT JUDGE UNITED STATES DISTRICT A S S C 3

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