Opinion
2:01-CV-0369
April 7, 2004
REPORT AND RECOMMENDATION TO REVOKE PAUPER STATUS AND OPPORTUNITY TO PAY FILING FEE
Plaintiff CARL J. NICHOLS, acting pro se and while a prisoner confined in the custody of the Texas Department of Criminal Justice, Institutional Division, has filed suit pursuant to Title 42, United States Code, Section 1983 complaining against the above-named defendants. Plaintiff was granted permission to proceed in forma pauperis in accordance with 28 U.S.C. § 1915.
Historically, courts have never been bound by a plaintiff's economic status on the filing date of a lawsuit but could re-evaluate a litigant's eligibility for pauper status where changes in his financial condition occurred during the pendency of suit. Carter v. Telectron, Inc., 452 F. Supp. 939, 942 (S.D.Tex. 1976). Thus, if the allegation of poverty was determined to be no longer true because of a subsequent improvement in the economic status of the plaintiff, it was within the discretion of the district court to dismiss the proceeding or require that the costs of litigation to date be paid by the plaintiff in lieu of dismissal. Id. Nothing in the Prison Litigation Reform Act (PLRA) eliminated the power of the courts in this regard.
"Because in forma pauperis status is a privilege, it follows that the privilege may be revoked when the goals of section 1915 are not being furthered." Murphy v. Jones, 801 F. Supp. 283, 288 (E.D.Mo. 1992). The passage of the Prison Litigation Reform Act (PLRA) was effected, in part, "to deter frivolous prisoner litigation in courts `by making all prisoners seeking to bring lawsuits or appeals feel the deterrent effect created by liability for filing fees.'" Jackson v. Stinnett, 102 F.3d 132, 137 (5th Cir. 1996) (quoting Leonard v. Lacy, 88 F.3d 181, 195 (2d Cir. 1996). Thus, the goals of section 1915 were modified by passage of the PLRA to include curbing abuse of the privilege to proceed without prepayment of fees. See, 28 U.S.C. § 1915(g). It logically follows that re-evaluation of a plaintiff s pauper status is appropriate where information comes to light showing he is or has been an abusive litigant who is no longer eligible to proceed in forma pauperis.
Plaintiff CARL J. NICHOLS has sustained three dismissals which fulfill the "three strikes" provision of the PLRA. Cause no. 2:01-CV-0409 was dismissed as frivolous and with prejudice to being asserted again until the Heck conditions were met on November 16, 2001, by the U.S. District Court for the Northern District of Texas, Amarillo Division. Cause no. 2:00-CV-0173 was dismissed as frivolous on September 20, 2001, by the United States District Court for the Northern District of Texas, Amarillo Division, and plaintiff's appeal was dismissed as frivolous on April 9, 2002, by the United States Court of Appeals for the Fifth Circuit.
Pursuant to Title 28, United States Code, section 1915(g), the Magistrate Judge FINDS plaintiff CARL J. NICHOLS has sustained three "strikes" while a prisoner and may not continue to proceed in forma pauperis in this case nor may he proceed as a pauper in 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). Review of the complaint shows that, even if the instant cause were accompanied by the necessary motion, the grounds presented in this suit do not fall within the statutory exception.
Because plaintiff has already sustained "three strikes" and can no longer avail himself of the provisions for proceeding in forma pauperis, it is the RECOMMENDATION of the Magistrate Judge to the United States District Judge that plaintiff's pauper status be REVOKED and that the instant cause be dismissed for failure to pay the requisite filing fee.
The United States District Clerk shall mail a copy of this Report and Recommendation to plaintiff, utilizing the inmate correspondence reply card or certified mail return receipt requested as appropriate, and to each attorney of record by certified mail, return receipt requested. Any party may object to the proposed findings and to the Report and Recommendation within fourteen (14) days from the date of this Order. Rule 72, Federal Rules of Civil Procedure, and Rule 4(a)(1) of Miscellaneous Order No. 6, as authorized by Local Rule 3.1, Local Rules of the United States District Courts for the Northern District of Texas. Any such objections shall be in writing and shall specifically identify the portions of the findings, recommendation, or report to which objection is made, and set out fully the basis for each objection. Objecting parties shall file the written objections with the Clerk of the Court and serve a copy of such objections on the Magistrate Judge and on all other parties. The failure to timely file written objections to the proposed factual findings, legal conclusions, and the recommendation contained in this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court. Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996)( en banc).
IT IS SO RECOMMENDED.
Plaintiff is advised that if he pays the remaining filing fee withinfourteen (14) days after the filing date hereof, this Report and Recommendation of dismissal will be withdrawn.
IT IS SO ORDERED.