     Case: 14-31259       Document: 00513924699         Page: 1     Date Filed: 03/23/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                     No. 14-31259                                FILED
                                   Summary Calendar                         March 23, 2017
                                                                            Lyle W. Cayce
                                                                                 Clerk
MITCHELL STEVENS,

                                                  Plaintiff - Appellant

v.

DARREL VANNOY, Warden; CHAD MANSINNI, Warden; TROY PORET,
Warden; UNKNOWN DUPONT, Warden; ORVILLE LAMARTIANEER,
Warden; CRUZ, Colonel; UNKNOWN ROBINSON, Colonel; CHAD ORBRA,
Lieutenant Colonel; SHELTON SCALES, Major; WILLIAM ROSSO, Captain;
MAGAN SHIPLEY, Class. Officer; FAIRCHILD, Class. Officer; UNKNOWN
BOUDROUX, Sec. Officer Staff Sergeant; UNKNOWN PIGEON, Lieutenant;
SHERWOOD PORET, Registered Nurse; MELANIE BARTON, Registered
Nurse; JAMES LABLANC, Sec.; ALL WHO ADMINISTER SHOTS SINCE
2002; AMY ZAUNBRACHER, Registered Nurse,

                                                  Defendants - Appellees


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:14-CV-204


Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Mitchell Stevens, Louisiana prisoner # 78189 proceeding pro se, appeals
the district court’s order denying his motion to proceed in forma pauperis (IFP)



       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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                                   No. 14-31259

in a 42 U.S.C. § 1983 action.       Stevens claims he was forced to undergo
tuberculosis testing against his will, in violation of, inter alia, the right to free
exercise of his religion and the Due Process Clause.
      He, however, had already filed an action raising substantially similar
claims, and also sought to proceed IFP.           The court dismissed the prior
complaint, without prejudice, for failure to exhaust administrative remedies,
but with prejudice to refiling the complaint IFP.
      For the instant action, a magistrate judge determined that, although
Stevens named additional defendants and raised allegations post-dating the
prior action’s dismissal, he nonetheless should not be allowed to circumvent
the prior sanction. Based on this conclusion, the magistrate judge denied
Stevens’ IFP motion. Stevens objected, but the district court adopted the
magistrate judge’s recommendations.
      Stevens timely filed a notice of appeal and, again, filed a motion to
proceed IFP with the district court. The court denied the motion, and certified
the appeal was not taken in good faith because it was taken from a non-
appealable interlocutory order. Our court, however, granted Stevens’ motion
to proceed IFP on appeal in the instant action.
      Stevens contends his instant complaint involves claims for conduct
occurring after the dismissal of his prior complaint and, thus, the court abused
its discretion in dismissing this complaint based on its order in his prior action.
He contends he raises new claims based on physical abuse and disciplinary
actions and punishment in violation of his rights to due process, to practice his
Mazarite religion, to engage in free speech, in addition to his right to be free
from cruel and unusual punishment.
      Although Stevens again seeks to enjoin defendants from subjecting him
to tuberculosis testing, he presents new factual allegations against new and
former defendants based on conduct occurring after the initial complaint was

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                                 No. 14-31259

dismissed. The court’s prior order was issued with prejudice to refiling the
same complaint IFP, and thus, precluding Stevens from raising the same
claims in another IFP action. See Marts v. Hines, 117 F.3d 1504, 1505 (5th Cir.
1997). Insofar as Stevens presented new factual allegations and claims not
included in his original complaint, the court abused its discretion in denying
Stevens the right to proceed IFP in district court based on its prior ruling.
Green v. Estelle, 649 F.2d 298, 302 (5th Cir. 1981).
      VACATED and REMANDED.




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