Opinion
No. 3:02-CV-2028-D
December 12, 2002
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
Plaintiff is an inmate currently incarcerated in the Texas Department of Criminal Justice Institutional Division. On September 19, 2002, plaintiff filed the instant civil action against the Texas Department of Corrections, the United States of America, and the State of Texas. ( See Compl. at 2-3.) On October 16, 2002, he moved to proceed in forma pauperis. The Court found that the motion to proceed in forma pauperis should be denied based on the three-strikes provision of 28 U.S.C. § 1915(g). ( See Order of November 4, 2002, at 3.) However, the Court deemed it appropriate to grant plaintiff thirty days to pay the full filing fee of $150.00 to the Clerk of the Court before recommending that in forma pauperis be denied. ( Id.) The Court also admonished plaintiff that failure to pay the filing fee within the time allotted would result in a recommendation that in forma pauperis be denied and that this action be dismissed without prejudice for failure to comply with a court order under Fed.R.Civ.P. 41(b). ( Id.) To date, plaintiff has not paid the requisite filing fee.
II. THREE STRIKES
As a prisoner seeking to proceed in forma pauperis, plaintiff's action is subject to review under the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915. One of the major changes promulgated by the PLRA is the "three-strikes" provision set forth in § 1915(g), which states:
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 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.
In short, inmates may not proceed without the prepayment of the requisite filing fees if they have previously brought three or more civil actions or appeals in federal court that were dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted except under extreme circumstances.
Plaintiff has seven "strikes" as defined by § 1915(g) of the PLRA. On February 8, 1999, the Court dismissed an action filed by plaintiff entitled Jones v. US Dist. Ct., No. 3:98-CV-2947-R (N.D. Tex.) as frivolous. See id. (Order Adopting Recommendation that action be dismissed as frivolous and Judgment dismissing action). On March 9, 1999, the Court dismissed an action entitled Jones v. US District Court, No. 3:99-CV-0021-T (N.D. Tex.) as frivolous. See id. (Order Adopting Recommendation that action be dismissed as frivolous and Judgment dismissing action). On March 15, 1999, the Court dismissed Jones v. United States District Court, No. 3:99-CV-0087-G (N.D. Tex.) as frivolous. See id. (Judgment dismissing action as frivolous).
On March 30, 1999, the Court dismissed an action entitled Jones v. State of Texas, No. 3:98-CV-2798-D (N.D. Tex.) as frivolous. See id. (Order Adopting Recommendation that the Court dismiss the action as frivolous and Judgment dismissing action). The next day, on March 31, 1999, the Court dismissed Jones v. Texas Dep't of Crim. Justice, No. 3:98-CV-2948-L (N.D. Tex.) as frivolous. See id. (Judgment dismissing action as frivolous). On December 16, 1999, the Fifth Circuit Court of Appeals dismissed the appeal of No. 3:98-CV-2798-D as frivolous. See Jones v. State of Texas, No. 99-10592, slip op. at 2 (5th Cir. Dec. 16, 1999). Subsequently, on August 14, 2000, the Court dismissed an action filed by plaintiff entitled Jones v. Texas Department of Criminal Justice, No. 2:99-CV-0030-J (N.D. Tex.) for failure to state a claim upon which relief can be granted. See id. (Mem. Opinion Order of Dismissal and Judgment dismissing action for failure to state a claim upon which relief can be granted).
The Fifth Circuit expressly noted that "[t]he district court's dismissal . . . and this court's dismissal of the appeal as frivolous count as two `strikes' for purposes of 28 U.S.C. § 1915(g)." Id. It further warned plaintiff that if he "accumulates three `strikes' under § 1915(g), he will not be able to proceed IFP in any civil action or appeal filed while he is incarcerated or detained in any facility unless he is under imminent danger of serious physical injury." Id.
The Court has previously denied plaintiff permission to proceed in forma pauperis due to the "three strikes" provision. See Jones v. Tolle, No. 3:01-CV-1215-G (N.D. Tex.) (Order Adopting Recommendation that the Court deny permission to proceed in forma pauperis due to excessive "strikes" and Judgment dismissing action for failure to pay filing fee). Accordingly, plaintiff's action cannot proceed without the prepayment of fees under 28 U.S.C. § 1915(g) unless it appears that plaintiff is subject to imminent danger of serious physical injury. Plaintiff has made no discernable allegation that he is in any imminent danger of serious harm. Consequently, the Court should deny plaintiff's motion to proceed in forma pauperis (doc. 3) as barred by the three-strikes provision of § 1915(g).
III. INVOLUNTARY DISMISSAL
Rule 41(b) of the Federal Rules of Civil Procedure permits a court to dismiss sua sponte an action for failure to prosecute or follow orders of the court. McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988). This authority flows from a court's inherent power to control its docket, prevent undue delays in the disposition of pending cases, and avoid congested court calendars. Link v. Wabash R.R. Co., 370 U.S. 626, 629-31 (1962). Plaintiff has failed to comply with the Order of November 4, 2002, that he pay the filing fee within thirty days. Accordingly, the Court should dismiss his complaint without prejudice for failure to follow orders of the Court.
IV. RECOMMENDATION
For the foregoing reasons, it is recommended that the Court deny plaintiff's motion to proceed in forma pauperis and dismiss his complaint without prejudice for failure to comply with an order of the Court pursuant to Fed.R.Civ.P. 41(b). As long as plaintiff remains a prisoner within the meaning of 28 U.S.C. § 1915(g), he may not proceed with the instant action or any other civil action without prepayment of the $150 filing fee or a showing of imminent danger of serious physical injury.