Opinion
Civil Action 6:23cv316
06-27-2023
LARRY COLEMAN HICKS #2270069 v. BRIAN COLLIER, et al.
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
K. NICOLE MITCHELL, UNITED STATES MAGISTRATE JUDGE
Larry Coleman, a prisoner of the Texas Department of Criminal Justice (TDCJ) proceeding pro se, filed this civil lawsuit without paying the filing fee and presumably seeks to proceed in forma pauperis (IFP). The case was referred to the undersigned for findings of fact, conclusions of law, and recommendations for the disposition of the case.
Title 28 U.S.C. § 1915(g), added by Act of Congress on April 26, 1996, as part of the Prison Litigation Reform Act, provides the following:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on three 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 ground that it is frivolous, malicious, or fails to state a claim upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury.
Plaintiff has accumulated at least three strikes for the purposes of this statute. See Hicks v. Gentry, No. 6:18cv598 (E.D. Tex. May 15, 2019) (dismissing as repetitive and malicious); Hicks v. Gentry, No. 6:18cv358 (E.D. Tex. Jan. 7, 2019) (dismissing as malicious); Hicks v. Bingham, No. 6:18cv308 (E.D. Tex. Nov. 28, 2018) (dismissing as frivolous and for failure to state a claim); Hicks v. Russell, No. 6:18cv362 (E.D. Tex. Sep. 27, 2018) (dismissing as frivolous and for failure to state a claim). Accordingly, Plaintiff may not proceed with this lawsuit without full payment of the filing fee unless he is in imminent danger of serious physical injury.
To meet the imminent danger requirement of Section 1915(g), the threat of serious physical injury must be “real and proximate.” See Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003). Allegations of past harm do not suffice; instead, the harm must be imminent or occurring at the time that the complaint or notice of appeal is filed-and the exception refers to “a genuine emergency” in which “time is pressing.” See Heimerman v. Litscher, 337 F.3d 781, 782 (7th Cir. 2003); see also Abdul-Akbar v. McKelvie, 239 F.3d 307, 313 (5th Cir. 2001) (“Someone whose danger has passed cannot be reasonably be described as someone who ‘is' in danger, nor can that past danger reasonably be described as ‘imminent.'”); Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999) (“Congress' use of the present tense in § 1915(g) confirms that a prisoner's allegation that he faced imminent danger sometime in the past is an insufficient basis to allow him to proceed in forma pauperis....”). Moreover, to establish an imminent danger for the purpose of Section 1915(g), a plaintiff's factual allegations must “not [be] fanciful, fantastic, or delusional.” Jones v. Hutto, No. 3:19-CV-1359-N-BN, 2019 WL 3307068, at *2 (N.D. Tex. June 11, 2019), report and recommendation adopted, No. 3:19-CV-1359-N, 2019 WL 3304791 (N.D. Tex. July 23, 2019).
Plaintiff's complaint does not satisfy that standard. His allegations that Defendants “tried to murder [him] with two tanks, two women, two shooters, and a grey alien clone” are clearly delusional and would not support a finding of any present danger of physical injury even if they were true. (Dkt. #1 at 3.) The Court should therefore bar Plaintiff from proceeding in forma pauperis in this case and dismiss it for nonpayment of the filing fee.
RECOMMENDATION
The Court should accordingly deny Plaintiff leave to proceed without prepayment of the filing fee pursuant to 28 U.S.C. § 1915(g) and summarily dismiss this action with prejudice as to the refiling of another in forma pauperis lawsuit raising the same claims, but without prejudice to the refiling of this lawsuit upon payment of the full $402.00 filing fee. Should Plaintiff pay the full fee within 15 days after the date of entry of dismissal of the present case, he should be allowed to proceed in this lawsuit as though the full fee had been paid from the outset.
Within fourteen (14) days after receipt of the Magistrate Judge's Report, any party may serve and file written objections to the findings and recommendations contained in the Report. In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the Magistrate Judge's proposed findings, conclusions, and recommendation where the disputed determination is found. An objection which merely incorporates by reference or refers to the briefing before the Magistrate Judge is not specific, and the district court need not consider frivolous, conclusive, or general objections. See Battle v. United States Parole Commission, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the findings, conclusions and recommendations contained in this Report within fourteen days after being served with a copy shall bar that party from de novo review by the district judge of those findings, conclusions and recommendations and, except on grounds of plain error, from appellate review of unobjected-to factual findings and legal conclusions accepted and adopted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).
So ORDERED and SIGNED.