Opinion
NO. 3-04-CV-1439-R.
August 12, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States magistrate judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The findings and recommendation of the magistrate judge are as follow:
I.
This is a pro se civil rights action brought by Plaintiff Felix Lyle Cowan, an inmate in the TDCJ-ID, against Sheriff Jim Bowles and two detention officers at the Dallas County Jail. On July 2, 2004, plaintiff filed a complaint and an application to proceed in forma pauperis. After reviewing the pleadings, the court determines that plaintiff should not be allowed to proceed in forma pauperis because he has filed at least three prior civil actions that were dismissed as frivolous and he is not "under imminent danger of serious physical injury." Accordingly, plaintiff's application to proceed in forma pauperis should be denied and his complaint should be unfiled.
II.
Plaintiff alleges that he was the victim of a "racial hate crime" perpetrated by two detention officers at the Dallas County Jail on January 20, 2003. According to plaintiff, the officers entered his cell, placed him in restraints, used a chemical agent against him, and struck him repeatedly with their fists. By this suit, plaintiff seeks $4 million in compensatory and punitive damages.
A.
A prisoner may not proceed in forma pauperis if he has filed three or more civil actions in federal court that were dismissed as frivolous, malicious, or for failure to state a claim. 28 U.S.C. § 1915(g). This prohibition applies to suits dismissed on any of those grounds prior to the effective date of the Prison Litigation Reform Act. Adepegba v. Hammons, 103 F.3d 383, 386 (5th Cir. 1996). The only exception is for cases where the prisoner is "under imminent danger of serious physical injury." 28 U.S.C. § 1915(g).
B.
Plaintiff was allowed to proceed in forma pauperis in at least four prior civil actions. All four cases were dismissed as frivolous under 28 U.S.C. § 1915. Cowan v. Johnson, No. 4-01-CV-0814 (S.D. Tex. Jan. 23, 2002); Cowan v. Gilbert, No. 4-99-CV-0362 (S.D. Tex. May 4, 2001); Cowan v. Scott, No. 4-97-0482 (S.D. Tex. Dec. 30, 1997); Cowan v. Bowles, No. 3-94-CV-0381 (N.D. Tex. May 25, 1995). Therefore, plaintiff must demonstrate that he is "under imminent danger of serious physical injury" before he can proceed in forma pauperis in another civil action.
The claim made the basis of this suit pre-dates plaintiff's confinement in the TDCJ-ID. Because plaintiff is currently in state custody, he is no longer "under imminent danger of serious physical injury" with respect to his claims against the Dallas County detention officers named in his complaint. See Choyce v. Dominguez, 160 F.3d 1068, 1070 (5th Cir. 1998) (determination of "imminent danger" must be made as of date complaint is filed). Consequently, this case is barred under the PLRA.
RECOMMENDATION
Plaintiff's application to proceed in forma pauperis should be denied and the district clerk should be ordered to unfile the complaint tendered on July 2, 2004.