IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

ANDRE D. LEFFEBRE §

VS. § CIVIL ACTION NO. 1:23-cv-51

MR. GUTIERREZ, ET AL. §

REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff Andre D. Leffebre, a prisoner confined at the United States Penitentiary located in

Beaumont, Texas, proceeding pro se, brings this lawsuit against prison officials. 

The above-styled action was referred to the undersigned magistrate judge pursuant to 28

U.S.C. 636 and the Local Rules for the Assignment of Duties to the United States Magistrate Judge,

for findings of fact, conclusions of law, and recommendations for the disposition of the case.

Discussion

Parties instituting any civil action, suit or proceeding are required to pay a filing fee of

$402.00. The Prison Litigation Reform Act of 1996 (PLRA) requires prisoners seeking to bring civil

actions to pay the full filing fee. When insufficient funds exist to pay the full fee at the time of

filing, a prisoner may request to proceed in forma pauperis and is required to pay an initial partial

filing fee of twenty percent of the greater of the average monthly balance or deposits into the

prisoner’s account. After payment of the initial partial filing fee, twenty percent of each preceding

month’s income will be deducted from Plaintiff’s inmate account monthly until the full filing fee is

paid.

Plaintiff failed to pay the $402.00 filing fee at the time he submitted his Complaint. The

undersigned therefore interprets Plaintiff’s failure to pay the filing fee as a request to proceed in

forma pauperis in this action. 

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Title 28 U.S.C. § 1915(g) prohibits prisoners from repeatedly filing frivolous or malicious

complaints. Section 1915(g) provides as follows:

In no event shall a prisoner bring a civil action or appeal a judgment in 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 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.

28 U.S.C. § 1915(g). 

Plaintiff has filed at least four prior lawsuits or appeals that have been dismissed as frivolous

or for failure to state a claim. See Leffebre v. Fed. Corp. United States, No. 07-41184, 2008 WL

793778 (5th Cir. Mar. 24, 2008) (dismissing appeal as frivolous and finding Plaintiff had three

additional strikes preventing him from proceeding in forma pauperisin future actions). Accordingly,

§ 1915(g) applies to this action. 

Plaintiff complains he has been denied due process, discriminated against, and denied use

of the administrative remedy process. Additionally, Plaintiff asserts a myriad of complaints about

the conditions of his confinement including the alleged denial of education programs, the denial of

special purpose orders, and the denial of coffee and health food items. Further, plaintiff complains

of alleged poor air circulation at the unit. The allegations set forth in Plaintiff’s Complaint do not

demonstrate that he was in imminent danger of serious physical injury at the time he filed his

complaint. See Banos v. O’Guin, 144 F.3d 883, 884 (5th Cir. 1998). Section 1915(g) therefore bars

Plaintiff from proceeding further with this lawsuit on an in forma pauperis basis. 

Recommendation

The above-styled civil action should be dismissed without prejudice pursuant to 28 U.S.C.

§ 1915(g).

Objections

Within fourteen days after being served with a copy of the magistrate judge’s report, any

party may serve and file written objections to the findings of facts, conclusions of law and

recommendations of the magistrate judge. 28 U.S.C. § 636 (b)(1)(C).

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Failure to file written objections to the proposed findings of facts, conclusions of law and

recommendations contained within this report within fourteen days after service shall bar an

aggrieved party from the entitlement of de novo review by the district court of the proposed findings,

conclusions and recommendations and from appellate review of factual findings and legal

conclusions accepted by the district court except on grounds of plain error. Douglass v. United

Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc); 28 U.S.C. § 636(b)(1); FED. R.

CIV. P. 72.

3

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___________________________________

Christine L Stetson

UNITED STATES MAGISTRATE JUDGE SIGNED this the 7th day of February, 2023.

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