Opinion
2:00-CV-0337
March 22, 2001
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Plaintiff J. C. KEETON, proceeding pro se and while a prisoner confined in the Texas Department of Criminal Justice, has filed suit pursuant to Title 42, United States Code, Section 1983 complaining against the above-named defendants. Plaintiff requests permission to proceed in forma pauperis.
A search of court records shows that plaintiff has filed at least three earlier civil rights lawsuits in federal court relating to his imprisonment and that plaintiff has sustained the "three strikes" allotted him under the Prison Litigation Reform Act of 1995 (PLRA).
ANALYSIS
On April 26, 1996, the Prison Litigation Reform Act of 1995 (PLRA) was signed into law, modifying the requirements for proceeding in forma pauperis in federal courts. Under the PLRA's "three strikes" provision, a prisoner who has had three prior actions or appeals, brought during detention, dismissed as frivolous, malicious, or for failure to state a claim, is barred from further proceeding in forma pauperis in such actions, unless the case fits into the narrow exception enumerated in 18 U.S.C. § 1915(g).The Fifth Circuit has examined the PLRA and construed it to apply to all cases pending at the time of its passage, as well as those filed afterwards. Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996). A prisoner who has sustained three dismissals qualifying under the "three strikes" provision may still pursue any claim, "but he or she must do so without the aid of the i.f.p. procedures." Id.
The Court notes that plaintiff J. C. KEETON, while a prisoner as defined under the Prison Litigation Reform Act, has sustained at least three dismissals which fulfill the "three strikes" provision of the PLRA. All three cases were prosecuted in the United States District Court for the Western District of Texas, Waco Division, as follows: (1) cause no. 6:91-CV-00107 was dismissed as frivolous on October 15, 1991, and no appeal was taken; (2) cause no. 6:91-CV-00144 was dismissed as frivolous on October 10, 1991, and no appeal was taken; and (3) cause no. 6:93-CV-00442 was dismissed as frivolous on July 15, 1994, and plaintiff's appeal was dismissed by the United States Court of Appeals on October 14, 1994.
By his March 20, 2001, response to the Court's February 13, 2001, Order to Show Cause, plaintiff does not dispute the accuracy of court records. Instead, he argues that prison officials had destroyed some of his legal property and, since he had been deprived of the records containing the details of case numbers, court in which the cases were filed, dates of disposition, etc., he felt it was best simply to state that he had not filed any previous cases.
Further, plaintiff argues application of the PLRA to cases dismissed prior to passage of the PLRA was impermissibly retroactive. This argument was considered and rejected by the Fifth Circuit in Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996).
Pursuant to Title 28, United States Code, section 1915(g), the District Judge FINDS plaintiff J. C. KEETON may not proceed in forma pauperis in this or any further new filings or appeals filed while a prisoner unless grounds are argued in a motion for leave which fall within the limited exception enumerated in 28 U.S.C. § 1915(g). Even if the instant cause were accompanied by the necessary motion, the grounds presented in the instant suit do not fall within the statutory exception.
CONCLUSION
Plaintiff has previously utilized his three "strikes" under the PLRA and is barred from proceeding in forma pauperis in any new civil proceeding filed in federal court while a prisoner. Further, by the instant complaint, plaintiff has not alleged facts falling within the exception defined by Title 28, United States Code, section 1915(g).
For the reasons set forth above, plaintiff's motion to proceed in forma pauperis is DENIED.
The instant cause is DISMISSED WITHOUT PREJUDICE TO REFILING WITH PREPAYMENT OF THE FILING FEE. 28 U.S.C. § 1915(g).
LET JUDGMENT BE ENTERED ACCORDINGLY.
All pending motions are DENIED.
The Clerk shall send a copy of this order to plaintiff and to Claire Laric at the U.S. District Court for the Northern District of Texas, Dallas Division.
IT IS SO ORDERED.