Opinion
3:01-CV-1215-G.
July 16, 2001
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 District Court in implementation thereof, this case has been referred to the United States magistrate judge. The findings, conclusions and recommendation of the magistrate judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type of Case: This is a civil rights complaint pursuant to 42 U.S.C. § 1983. Because Plaintiff has not paid the filing fee, the court proceeds as though he is seeking leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
Parties: Plaintiff is currently confined at the Clements Unit of the Texas Department of Criminal Justice — Institutional Division in Amarillo, Texas. Defendants are District Attorney Teresa Tolle, Judge Gerry Meier, Attorney Davey O. Lamb, the jury that decided Plaintiff's case, the State of Texas, and Dallas County. The court has not issued process in this case.
Statement of Case: The complaint alleges that Defendants violated his constituitonal rights by conspiring to convict him during his jury trial.
Findings and Conclusions: The Prison Litigation Reform Act (PLRA), enacted into law on April 26, 1996, amended 28 U.S.C. § 1915 as it relates to civil actions that prisoners file in federal court. Among the changes effected by the PLRA was the inclusion of 28 U.S.C. § 1915(g), also known as the "three-strike" provision. Section 1915(g) precludes a prisoner from bringing a civil action in forma pauperis if on three or more prior occasions, while confined as a prisoner, he filed civil actions or appeals in federal court which were dismissed, either by a district court or appellate court, as being frivolous, malicious, or for failing to state a claim upon which relief may be granted. In applying the "three-strike" provision of § 1915(g), a court may consider case dispositions that occurred prior to the effective date of the PLRA. Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
A review of the U.S. Party/Case Index and the Court Clerk's records reflects that Plaintiff filed numerous actions in the Northern District of Texas while confined as an inmate. They are listed and described seriatim:
1. Jones v. State of Texas, No. 3:98-CV-2798-D (N.D. Tex.). On March 30, 1999, the district court adopted the recommendation of the magistrate judge and dismissed the complaint with prejudice as frivolous pursuant to 28 U.S.C. § 1915A(b)(1) (2) and 28 U.S.C. § 1915(e)(2)(B)(i). Plaintiff appealed. On December 16, 1999, the Fifth Circuit Court of Appeals dismissed the appeal as frivolous and warned Plaintiff about the three-strike provision. (Attachment 1).
2. Jones v. United States District Court, No. 3:98-CV-2947-R (N.D. Tex.). On February 8, 1999, the district court adopted the magistrate judge's recommendation and dismissed the complaint with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). (See Attachment 2). Plaintiff did not appeal.
3. Jones v. Texas Department of Criminal Justice, 3:98-CV-2948-L (N.D. Tex.). On March 31, 1999, the district court adopted the magistrate judge's recommendation and dismissed the complaint with prejudice as frivolous. Plaintiff did not appeal. (See Attachment 3).
4. Jones v. United States District Clerk, 3:99-CV-21-T (N.D. Tex.). On March 9, 1999, the district court adopted the magistrate judge's recommendation and dismissed the complaint with prejudice as frivolous. Plaintiff did not appeal. (See Attachment 4).
5. Jones v. United States District Court, et al., 3:99-CV-87-G (N.D. Tex.). On March 15, 1999, the District court adopted the magistrate judge's recommendation and dismissed the complaint with prejudice as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). Plaintiff did not appeal. (See Attachment 5).
When a district court or circuit court dismisses a case or an appeal as frivolous or for failure to state a claim, such a dismissal counts as a "strike" under § 1915(g) once the judgment becomes final. See Adepegba, 103 F.3d 383, 387-88; 28 U.S.C. § 1915(g) (covering dismissals as "frivolous, malicious, or[for] fail[ing] to state a claim upon which relief may be granted"). A district court's dismissal is final when the prisoner has exhausted avenues of appeal or has waived any appellate rights. Id.; Patton v. Jefferson Correctional Ctr., 136 F.3d 458, 462 (5th Cir. 1998). Affirmance of a district court's dismissal counts as an additional "strike" if the circuit court "separately dismisse[s] the appeal as frivolous. . . ." Adepegba, 103 F.3d at 388.
Applying Adepegba to Plaintiff's prior in forma pauperis actions described above, it is clear that he has at least three "strikes" under § 1915(g). Plaintiff accumulated one "strike" for each of the five actions, filed in the Northern District, while he was confined as an inmate. The district court dismissed each of these actions as legally frivolous. Plaintiff accumulated an additional strike for appealing the dismissal of his complaint in Jones v. States of Texas, 3:98CV-2798-D (N.D. Tex.). As noted above, the Fifth Circuit dismissed the appeal as frivolous and warned Plaintiff about the three-strike provision.
Because Plaintiff has accumulated at least three "strikes," § 1915(g) precludes him from proceeding in this action informa pauperis unless he alleges a claim of "imminent danger of serious physical injury." Plaintiff's complaint presents no claim that he is in danger of physical injury. See Carson v. Johnson, 112 F.3d 818, 822-823 (5th Cir. 1997); Adepegba, 103 F.3d at 388. See also Banos v. O'Guin, 144 F.3d 883 (5th Cir. 1998). Therefore, Plaintiff's complaint does not fall within the exception to the "three-strike rule" set out in § 1915(g) and his request for leave to proceed informa pauperis should be denied. Plaintiff should be given an opportunity to pay the full filing fee of $150.00 or his action will be dismissed as barred by three strikes. See Adepegba, 103 F.3d at 388.
RECOMMENDATION:
For the foregoing reasons, it is recommended that the District Court enter an order denying Plaintiff leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(g) and directing that this action be dismissed pursuant to § 1915(g) unless Plaintiff tenders the $150.00 filing fee within 30 days of the District Court's order.
A copy of this recommendation will be mailed to Plaintiff.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.