Opinion
CIVIL 1:20cv302-HSO-BWR
10-14-2022
DEMARIO DONTEZ WALKER PLAINTIFF v. GLORIA PERRY, et al. DEFENDANTS
MEMORANDUM OPINION AND ORDER OVERRULING PLAINTIFF DEMARIO DONTEZ WALKER'S OBJECTIONS [106], [107], [110]; ADOPTING REPORT AND RECOMMENDATION [101]; REVOKING PLAINTIFF'S IN FORMA PAUPERIS STATUS; IMPOSING SANCTIONS; AND DISMISSING CASE WITHOUT PREJUDICE
HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE
BEFORE THE COURT are Plaintiff Demario Dontez Walker's Objections [106], [107], [110] to the Report and Recommendation [101] of United States Magistrate Judge Robert H. Walker, which was entered in this case on July 8, 2022. After conducting a hearing on April 28, 2022, and based upon a review of the parties' submissions, the record, and relevant legal authority, the Magistrate Judge recommended that Plaintiff's in forma pauperis status be revoked. See R.&R. [101] at 11. Plaintiff has submitted three separate Objections [106], [107], [110] to the Report and Recommendation [101].
After thoroughly reviewing the record and relevant legal authority, the Court finds that Plaintiff's Objections [106], [107], [110] should be overruled, that the Magistrate Judge's Report and Recommendation [101] should be adopted in its entirety, and that Plaintiff's in forma pauperis status should be revoked. This civil action will be dismissed without prejudice, and Plaintiff will be sanctioned.
I. BACKGROUND
On September 23, 2020, Plaintiff Demario Dontez Walker (“Plaintiff” or “Walker”), an inmate in the custody of the Mississippi Department of Corrections (“MDOC”), filed the Complaint [1] in this case, advancing claims under 42 U.S.C. § 1983 arising out of her incarceration at Central Mississippi Correctional Facility (“CMCF”). See Compl. [1] at 3; Mot. [4] at 1. The Complaint named as Defendants Dr. Gloria Perry, Dr. William T. Brazier, Dr. Ronald Woodall, and Nurse Practitioner Angela Brown. See id. at 3-4. According to Walker, she is a preoperative transgender inmate who has been diagnosed with “intense Gender Identity Disorder” (“GID”). Id. at 7. The Complaint alleged that MDOC has failed to provide any medical or psychological treatment for this condition, which led to suicide attempts and self-mutilation. See id.
Plaintiff has referred to herself as “she” at times, Pl.'s Obj. [68] at 1, and “he” at others, Compl. [1] at 2.
It is beyond dispute that “Walker has already been informed that he has accumulated three strikes under 28 U.S.C. § 1915(g)” and “is no longer able to proceed in forma pauperis 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.” Walker v. Miss. Parole Bd., 333 Fed.Appx. 843, 845 (5th Cir. 2009) (citing 28 U.S.C. § 1915(g)). Walker nevertheless filed a Motion [4] for Leave to Proceed in forma pauperis (“IFP”). In an effort to circumvent the three-strikes bar and obtain IFP status in this case, Walker claimed that she was in “imminent danger.” See, e.g., Compl. [1] at 2; Resp. [6] at 1. Specifically, Plaintiff alleged that she was
at risk of serious danger or injury. Because he is subject to sucicide [sic] risk due to untreated GID and or extreme or severe additional mental deteriation [sic] of his mind and mental state, especially due to the severe risk based on Plaintiff sucicidal [sic] tendecies [sic], these tendecies [sic] will greatly increase and the risk of sucicide [sic] is severe especially when mental health care is being withheld because some doctors in Mississippi consider GID treatment “controversial” despite it being an actual medical/mental health condition recognized by medical professionals and the court systems.Compl. [1] at 2. Plaintiff asserted that MDOC had failed to provide psychological treatment, and that such “failure lead[s] to sucicide [sic] attempts and self mutilation.” Id. at 7; see also id. at 8 (claiming Plaintiff has been suicidal and “exhibiting disruptive and oppositional behavior, not limited to but including self mutilation of his body and genital area”).
On April 29, 2021, the Court entered an Order [8] finding that, “[a]t this stage in the proceedings, the Court cannot definitively state that Walker does not meet the [imminent danger] exception provision” to § 1915(g). Order [8] at 1. The Court provisionally granted Walker's Application [4] to proceed IFP at the screening stage and imposed a payment schedule. Id. at 1-2.
Following a lengthy procedural history that need not be detailed here, the Court ordered the Magistrate Judge to conduct a hearing to determine whether Walker was in fact in imminent danger of serious physical injury at the time of the filing of the Complaint [1] or Application [4] to proceed IFP, and whether Walker's IFP status should be revoked. See Order [88] at 7. The Magistrate Judge conducted a hearing on April 28, 2022, see Min. Entry, Apr. 28, 2022, and entered the Report and Recommendation [101] on July 8, 2022, that Walker's IFP status be revoked, see R.&R. [101] at 11. The Magistrate Judge found that “Walker's testimony undermine[d] the credibility of her imminent danger assertion,” and “Walker's imminent danger assertion is inconsistent with her medical records.” Id. at 7. The Magistrate Judge also concluded that Defendants' alleged acts or omissions concerning Walker's medical treatment were insufficient to meet the threshold requirement of imminent danger of serious physical injury. Id.
Walker has submitted three separate Objections [106], [107], [110] to the Report and Recommendation [101], two of which are plainly untimely, and will be overruled as such. Defendants responded to the timely first Objection [109], to which Walker filed a Response [112]. In her timely Objection [106], Walker objects to the Magistrate Judge's credibility determinations and factual findings. Obj. [106] at 2, 5-9. Walker also argues that the Magistrate Judge should have recused from the case, that he improperly excluded certain exhibits and witness testimony at the hearing, that Defendants failed to put forth any evidence to establish that Walker was not in imminent danger, and that the Magistrate Judge failed to allow Defendant Dr. William Thomas Brazier to review exhibits in order to answer whether Walker has had her mental health medications increased significantly since being incarcerated. See id. at 2-4, 9, 18-20.
Any objection to the Report and Recommendation [101] was due by July 25, 2022. See Fed. R. Civ. P. 6(d); Fed.R.Civ.P. 72(b)(2); L.U. Civ. R. 72(a)(3). Walker's second Objection [107] was purportedly signed July 22, 2022, but it does not state when Walker delivered it to prison authorities, see Obj. [107] at 21, meaning the prison mailbox rule would not apply, see generally, e.g., Brown v. Taylor, 829 F.3d 365, 368 (5th Cir. 2016) (explaining under the mailbox rule a filing is timely if it is deposited in the institution's internal mail system on or before the applicable deadline). The second Objection [107] was date-stamped “APPROVED LEGAL MAIL” on July 26, 2022, which was after the objection deadline. See Envelope [107-2] at 1. The third Objection [110] is in large part identical to the second Objection [107]. It bears the same signature date and does not state when it was deposited with prison officials. See Obj. [110] at 25. The envelope containing the third Objection [110] was marked “APPROVED LEGAL MAIL” on August 4, 2022, well after the objection deadline. See Envelope [110-4] at 1. As such, these two untimely Objections will not be considered, but even if they were, the result would not change.
Walker also contends that the Magistrate Judge should have recused from the case based upon his alleged “Ultra Conservative Personal Beliefs,” but Walker cites no evidence of any alleged bias on the part of the Magistrate Judge. See Obj. [106] at 2. Earlier in the case, Walker filed an unsworn Motion [61] for Recusal, which the Magistrate Judge denied on November 18, 2021. See Order [63]. Walker did not reurge that Motion or seek review of the Order. In substance, Walker complains about prior rulings in her cases, which she believes demonstrate bias. See Obj. [106] at 2 (referencing a “pattern” of “avail[in]g himself at every opportunity provided to him to dismiss this case”); Mot. [61] at 1 (stating that she “has a longstanding history with the U.S. Magistrate”). Walker has made no showing of actual personal bias or prejudice on behalf of the Magistrate Judge, see 28 U.S.C. § 144, nor would any reasonable and objective person, knowing all the facts, harbor doubts concerning the Magistrate Judge's impartiality, see 28 U.S.C. § 455(a). The Magistrate Judge did not err in this regard.
II. DISCUSSION
A. Standard of review
Because Walker objected to the Magistrate Judge's Report and Recommendation [101], the Court “make[s] a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also Fed.R.Civ.P. 72(b)(3). Under a de novo review, the district court makes its “own determination based upon the record and unrestrained by the findings and conclusions of the magistrate.” United States v. Wilson, 864 F.2d 1219, 1222 (5th Cir. 1989). “[T]he statute calls for a de novo determination, not a de novo hearing,” meaning that the Court is not required “to rehear the contested testimony in order to carry out the statutory command to make the required ‘determination.'” United States v. Raddatz, 447 U.S. 667, 674 (1980). Section 636(b)(1) “permits the district court to give to the magistrate's proposed findings of fact and recommendations such weight as their merit commands and the sound discretion of the judge warrants.” Id. at 683 (quotation omitted).
The Court reviews any unobjected-to portions of the Magistrate Judge's Report and Recommendation [101] for clear error, an abuse of discretion, or conclusions that are contrary to law. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989). “A factual finding is clearly erroneous when, based on the evidence as a whole, [the Court is] left with the definite and firm conviction that a mistake has been made.” Realogy Holdings Corp. v. Jongebloed, 957 F.3d 523, 530 (5th Cir. 2020) (quotation omitted).
B. The Prison Litigation Reform Act's “three strikes” provision
The Prison Litigation Reform Act (“PLRA”) provides that
[i]n 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.28 U.S.C. § 1915(g) (emphasis added). Prisoners may not be granted IFP status if they have previously brought three or more claims that were found to be frivolous, malicious, or that failed to state a claim, see id., but the “imminent danger” exception set forth in § 1915(g) permits an otherwise barred prisoner to obtain IFP status if she faces an imminent danger of serious physical injury, see id.; Banos v. O'Guin, 144 F.3d 883, 885 (5th Cir. 1998).
In her Objection [106], Walker disputes the wisdom of the three-strikes bar in § 1915(g), particularly in light of a “prisoner facing a lengthy prison term.” Obj. [106] at 13; see id. at 10-16. The question of whether to amend or abolish this statute is not one properly before this Court.
Because § 1915(g) speaks in the present tense, the prisoner must be in “imminent danger of serious physical injury” at “the time when the action or appeal is filed or the motion for IFP status is made.” Banos, 144 F.3d at 885; see 28 U.S.C. § 1915(g). Where a prisoner fails to establish that she faced imminent danger of serious physical injury at the time the complaint was filed, a court may deny or revoke IFP and dismiss the case until the filing fee is paid. See id.
C. Magistrate Judge's findings
At the hearing, Walker and Defendant Dr. William Thomas Brazier (“Dr. Brazier”), who is the medical director at CMCF, testified. Walker and Defendants also offered several exhibits for the Magistrate Judge's consideration. The Court admitted Plaintiff's composite Exhibit 1, which included excerpts of Walker's medical records from MDOC; Affidavits from fellow inmates Timothy Allen McCoy, Gabriel McDowell, and Christopher Lamar Coleman; a letter dated June 22, 2021, from a Kevin Moran, M.D. (“Dr. Moran”) to Dr. Brazier; and a “Memo” dated July 2, 2021, from Dr. Moran to Dr. Brazier. Pl.'s Ex. 1 [94] (filed under seal). The Magistrate Judge excluded Plaintiff's composite Exhibit 2, which included articles entitled “Suicidal ideation and suicide attempts in persons with gender dysphoria” and “Gender dysphoria”; an American Psychological Association Resolution on Gender Identity Change Efforts; and an Assessment for Gender Affirming Surgery purportedly completed by Dr. Moran on February 1, 2020. Pl.'s Ex. 2 [95] (for identification only) (filed under seal). Defendant introduced three exhibits into evidence: (1) Walker's extensive medical records from January 2020 to April 2022; (2) “body sheets” generated from Walker's medical visits; and (3) Walker's mental health records. See Def.'s Ex. 1-3 [96], [97], [98], [99] (filed under seal).
At the hearing, defense counsel questioned the existence of Dr. Moran, but the Court need not resolve this issue. Even if Dr. Moran is who Walker says he is, the result would not change.
Walker asserts that the Magistrate Judge erred in failing to permit her to introduce into evidence the Affidavits of McCoy, McDowell, and Coleman, and the Memo from Dr. Moran to Dr. Brazier. See Obj. [106] at 4. Walker, however, is mistaken, as these items were admitted as part of Plaintiff's Exhibit 1. See Pl.'s Ex. 1 [94] at 18-23 (filed under seal).
Dr. Brazier explained that when anyone is brought to the prison clinic, a “body sheet” is generated. A nurse documents the patient's vital signs on the sheet and marks where on the person's body there is any type of injury.
Due to the size of Defendants' Exhibit 1 and the size limitations in ECF, the Court split and filed it under two different docket numbers. See Def.'s Ex. 1 [96], [97] (filed under seal).
The Magistrate Judge found that Walker had failed to provide specific factual allegations to support her assertion of imminent danger at the time of filing and that her testimony at the hearing undermined the credibility of that assertion. See R.&R. [101] at 6-7. The Magistrate Judge noted that Walker's imminent danger claim was also inconsistent with her medical records, which did not reflect “any recorded self-harm attempts or reports of her being placed on suicide watch.” Id. at 7. According to the Magistrate Judge, “Walker's allegations regarding Defendants' alleged acts or omissions concerning her medical treatment are insufficient to meet the threshold requirement of imminent danger of serious physical injury.” Id. (collecting cases). The Magistrate Judge found unconvincing Walker's assertion that she is constantly under a threat of imminent danger, citing authority that an “ongoing danger theory” is untenable. Id. at 9. In addition, the Magistrate Judge expressed some concern “regarding the viability of allowing a prisoner to circumvent the three-strikes bar by creating, attempting to develop, or threatening to create their own imminent danger.” Id. at 9-10. Thus, he recommended that Walker's IFP status be revoked. See id. at 11.
D. Whether Walker was in imminent danger
1. Walker's allegations in the Complaint
Walker made no specific allegations of imminent danger in the standard, form IFP application. See Mot. [4]. In a “Memorandum in Support of Imminent Danger Exception under 1915(g)” Walker filed on November 4, 2020, she made a general allegation that there are “life-threatening medical conditions” for which she is not being treated” including “cardiomyopathy, COPD, and Gender Identity Disorder,” which could result in loss of life, further disability or impairment, extreme pain, discomfort, potential infection, and skin diseases. Mem. [2] at 2. However, claims concerning lack of treatment for cardiomyopathy, COPD, or any other condition unrelated to Gender Identity Disorder are irrelevant to the § 1983 claims asserted in this case and are thus irrelevant to the imminent danger inquiry. See id.; Compl. [1]; see also, e.g., Wyatt v. Texas, No. 18-CV-0490, 2018 WL 2015826, at *1 (W.D. La. Apr. 30, 2018) (denying IFP due to “three-strike history” because “[t]he facts alleged in Plaintiff's complaint do not suggest that he is in imminent danger of serious physical injury related to the claims he asserts”); Wetzel v. Tanner, No. CV 16-5765, 2016 WL 3127302, at *2 (E.D. La. June 3, 2016) (“[T]o avoid the Section 1915(g) bar, an allegation of imminent danger must relate to the claims forming the basis of the complaint, and the claim for relief must be for the alleviation of that threat of harm.”).
Walker originally executed the Complaint on July 9, 2020, and then signed it again on September 7, 2020. See Compl. [1] at 17. The envelope containing the Complaint was marked as “APPROVED LEGAL MAIL” by the prison when it was received from Walker, on what appears to be September 17, 2020, and the envelope was postmarked September 21, 2020. See Envelope [1-1] at 1.
It is unclear why Walker waited over two months to attempt to file a Complaint that she drafted in July 2020 if she was truly in “imminent danger,” further undermining the credibility of her assertions. Compl. [1] at 2. Moreover, an allegation of danger in July 2020 is not relevant to the IFP determination, which is judged at the time the action was filed in September 2020, or when the motion for IFP was filed in February 2021. See Banos, 144 F.3d at 885.
Walker alleged in the Complaint [1] that she had been diagnosed with Gender Identity Disorder (“GID”), see Compl. [1] at 7, and was “at risk of serious danger or injury” because “he is subject to sucicide [sic] risk due to untreated GID and or extreme or severe additional mental deteriation [sic] of his mind and mental state,” id. at 2. Walker referred to “sucicidal [sic] tendecies [sic],” and stated that “these tendecies [sic] will greatly increase and the risk of sucicide [sic] is severe especially when mental healthcare is being withheld.” Id.
According to Walker, the MDOC's failure to provide her psychological treatment for GID has led to suicide attempts and self-mutilation. See id. at 7. The Complaint [1] alleged that Walker “has been sucicidal [sic], and exhibiting disruptive and oppositional behavior, not limited to but including self mutilation of his body and genital area.” Id. at 8. Walker asserted that she “has suffered acute depression, self mutilation, autocastration and sucicide [sic] attempts,” but that “MDOC Defendants failed to provide any treatment for GID,” id. at 9, and that, as a result, she “has been experiencing sucidal [sic] ideatations [sic] and [is] prone to self mutilation, extreme depression, anxiety, and frustration.” Id. at 11. Based upon these allegations, the Court provisionally granted IFP status. See Order [8] at 1-2.
2. The evidence at the hearing
a. Walker's testimony
The audio recording of the hearing was filed into the record under restricted access. See Doc. [113]. Walker testified that the alleged imminent danger she faced has been in existence since her arrival in the custody of MDOC in 2018. According to Walker, she has been dealing with this issue since she was approximately 10 years old and has committed acts of self-mutilation and attempted castration. When the Magistrate Judge asked Walker for the date when she attempted suicide while incarcerated, she could not provide one; however, when the Magistrate Judge asked when these purported acts occurred in relation to the filing of the Complaint, Walker responded that it was right before and after its filing. Walker claimed that during that period she attempted suicide seven or eight times by acquiring medication from other inmates and overmedicating. However, Walker testified that the excessive use of these medications either made her lethargic or caused diarrhea and vomiting. According to Walker, although she spoke with some mental health counselors about these suicide attempts, she did not require medical assistance. Walker purportedly mentioned suicidal ideations to counselors but did not reveal that she was suicidal or had any plan to commit suicide. She claimed this was because she did not wish to be placed on suicide watch.
On cross-examination, Walker estimated that she began having thoughts of suicide around 2019, and that the frequency of these thoughts increased throughout 2020, 2021, and 2022. Walker testified that the last suicide attempt occurred prior to the hearing sometime in January or February 2022. However, Walker acknowledged that she was unsure if the last suicide attempt was related to GID or whether it was related to a sexual assault she claimed to have suffered. Walker also admitted during the hearing that after the Complaint was filed, she began receiving treatment for GID, including hormone therapy. While her purported suicide attempts declined as a result of the therapy, she claims it was not a significant reduction.
With respect to her self-mutilation claims, Walker stated that she had cut various parts of her body with a razor, including her genital area, approximately four times during her incarceration with the MDOC, the last occasion being in midMarch 2022. According to Walker, the resulting injuries required ointment and Band-Aids, but the cuts were not deep enough to require any stitches.
b. Other evidence at the hearing
At the evidentiary hearing, Walker and Defendants introduced her medical and mental health records; affidavits from Walker's fellow inmates; and correspondence from a Dr. Moran. The Magistrate Judge also heard live testimony from Dr. Brazier. Dr. Brazier reviewed Walker's medical records since 2009 and testified that there was no indication from those records that Walker had engaged in any self-harm or been placed on suicide watch. Dr. Brazier found no indication in the records that Walker ever expressed to anyone at CMCF that she was contemplating suicide, nor was Dr. Brazier aware of any evidence that led him to believe that Walker had ever made a suicide attempt. Dr. Brazier also testified that in the course of his treatment of Walker, he had never observed any evidence of self-mutilation or attempted suicide.
Walker contends that she was not allowed to call live witnesses at the hearing, but she has not identified what witnesses she would have called or explained what testimony they would have offered. See Obj. [106] at 3. At the hearing, Walker stated that because of the Court's Order prohibiting filing, she was not able to notify the Court of the witnesses that she would have sought to call on the imminent danger issue. However, the only filing ban the Court instituted in the case was one “prohibiting Plaintiff from filing additional Motions or any other documents until the Court has resolved all currently pending Motions in this case.” Text Order, Mar. 22, 2022. The Court ruled on all pending Motions three days later, which lifted the temporary ban, see Order [88], and the hearing was held more than a month after that. Walker's reliance on any filing ban for her purported inability to call witnesses at the hearing is meritless.
Walker referenced the possibility of calling as witnesses several mental health counselors from CMCF and a Dr. Moran, but she only made the conclusory allegation that the CMCF mental health counselors could support her claims of suicidal ideations, without offering any specifics as to the testimony they could provide. However, as Defendants pointed out at the hearing, Walker's mental health records from CMCF were introduced into evidence, which would have offered the same information. As for Dr. Moran, the Magistrate Judge permitted Walker to schedule his deposition within ten days of the hearing, but Walker failed to do so. Her argument concerning the lack of witness testimony is thus unavailing.
Walker did introduce a medical record dated October 11, 2021, that relayed her statement that, “I am not suicidal but sometimes I think about that stuff because I get frustrated because of my Gender Dysphoria/Identity or whatever they want to call it.” Pl.'s Ex. 1 [94] at 2 (filed under seal). The medical official advised Walker “to notify security immediately if [she] began to have suicidal ideations/urges.” Id. Many of Walker's prison medical records reflected that she had “no suicidal or homicidal ideations,” including those from March 4, 2020; April 4, 2020; June 9, 2020; June 14, 2020; August 2, 2020; August 30, 2020; September 26, 2020; October 31, 2020; November 21, 2020; November 29, 2020; December 26, 2020; January 23, 2021; March 11, 2021; March 20, 2021; June 12, 2021; August 7, 2021; September 11, 2021; September 20, 2021; October 10, 2021; November 11, 2021; January 8, 2022; March 5, 2022; and March 24, 2022. Id. at 7, 10, 13; Ex. D-1 [96] at 22, 31, 79, 101, 138, 155, 167, 193, 252, 259, 295, 313, 325, 332, 343, 374, 387, 405 (filed under seal); Ex. D-1 [97] at 49, 56, 242, 320 (filed under seal).
The Court will cite the ECF-generated page numbers of all hearing exhibits rather than any page numbers on the exhibits themselves.
Likewise, the records reflect that Walker was asked on numerous occasions whether she had any thoughts or plans of suicide, to which she responded “No.” See, e.g., Ex. D-1 [97] at 112 (filed under seal) (February 7, 2020); id. at 227 (February 21, 2020); id. at 105 (February 26, 2020). Walker's medical records also indicate that as of February 21, 2020, she had no history of making any suicide attempts. See id. at 228. The Court finds instructive that several of the above-referenced records encompass the time periods when the Complaint [1] was filed in this case, on September 23, 2020, and when the Motion [4] for leave to proceed IFP was filed, on February 10, 2021.
Some of these records also reflect medical appointments occurring after the relevant time period. The Court notes that Walker has consistently denied to medical personnel that she was having any suicidal ideations both before and after her Complaint [1] and IFP Motion [4] were filed and that she showed no ongoing concerns of being in imminent danger. See, e.g., Ex. D-1 [97] at 307 (filed under seal) (stating for visit on March 31, 2020, that Walker “denied any suicidal and/or homicidal ideations, thoughts or attempts”); id. at 319-20 (reporting at visit on April 4, 2020, that Walker “denies any suicidal ideations, intent or plan”); id. at 409 (stating on May 27, 2020, that Walker “denied any suicidal and/or homicidal ideations, thoughts or attempts”); id. at 44 (noting same on June 18, 2020); id. at 13 (same on July 13, 2020); Ex. D-1 [96] at 269 (filed under seal) (representing to prison medical personnel on February 23, 2021, that “he was not suicidal or homicidal but wanted someone to listen”); id. at 259 (stating that Walker “adamantly denies any suicidal ideations, intent or plan to harm himself,” on March 11, 2021); id. at 235 (on April 18, 2021, “adamantly den[ying] any suicidal thoughts”); id. at 165 (denying on August 25, 2021, that she had “suicidal ideations”); id. at 136; id. at 136 (stating on October 11, 2021, that, “I am not suicidal but sometimes I think about that stuff because I get frustrated”); id. at 48 (reporting on February 23, 2022, that while she “[s]ometimes [has] thoughts about giving up,” she is “not suicidal right now,” and she “denie[d] any suicidal and homicidal ideation”); id. at 57 (“He admanlty [sic] denies having any suicidal thought or plan to harm himself,” from February 5, 2022); id. at 27 (informing medical personnel on March 16, 2022, that “I'm not suicidal”); id. at 6 (relaying on April 13, 2022, that “I'm not suicidal but I get depressed”).
In her Objection [106], Walker now states that her “claim is not that she is suicidal but that she will become suicidal and do other things, if not treated.” Obj. [106] at 28. However, § 1915(g) permits an exception for “imminent danger of serious physical injury.” 28 U.S.C. § 1915(g) (emphasis added). Even if Walker's post-hearing statement in her Objection [106] that she believes that she may become suicidal in the future were found to be credible, generalized concerns of future harm are insufficient to overcome the three-strikes bar. See id.; see also, e.g., Davis v. Stephens, 589 Fed.Appx. 295, 296 (5th Cir. 2015) (holding that a prisoner's “allegation that he might be seriously injured at an indefinite point in the future because he has been required to wear shoes that are the wrong size and are damaged is insufficient to establish that he was in imminent danger of serious physical injury at the relevant times”); Warren v. Ellis Cnty., Tex., 519 Fed.Appx. 319, 320 (5th Cir. 2013) (holding that the inmate's “assertions regarding his cell conditions and the possibility of future medical problems resulting from stress do not show that he faced an imminent danger of serious physical injury at the relevant time”).
See also Heimermann v. Litscher, 337 F.3d 781, 782 (7th Cir. 2003) (“The ‘imminent danger' exception to § 1915(g)'s ‘three strikes' rule is available for genuine emergencies, where time is pressing and a threat is real and proximate.”) (quotation omitted).
With respect to her allegations of self-mutilation, Walker was seen by medical personnel multiple times in the months leading up to and soon after the filing of the Complaint and the IFP Motion [4], and repeatedly denied that she was at risk of or had thoughts of self-harm. See, e.g., Ex. D-1 [97] at 97 (filed under seal) (responding “no” to question on February 6, 2020, whether she had any thoughts or plans of self-harm); id. at 112 (same on February 7, 2020); id. at 227 (same on February 21, 2020); id. at 105 (same on February 26, 2020); id. at 371 (on May 4, 2020, Walker “denies any intent of self-harm); id. at 56 (reporting on June 7, 2020, that Walker is “feeling more paranoid and hearing voices of people talking more often but has no commands to harm himself or others”); Ex. D-1 [96] at 343 (filed under seal) (stating on October 31, 2020, that Walker claims she is “hearing voices and seeing visions but has no commands to harm himself or others”); id. at 259 (on March 11, 2021, denying any plan to harm herself); Pl.'s Ex. 1 [94] at 27 (filed under seal) (stating on March 16, 2022, “I don't feel like I want to hurt myself”); id. at 57 (adamantly denying on February 5, 2022, having a plan to harm herself). Nor has Walker cited any medical records which demonstrate that she in fact engaged in any self-harm, contrary to her self-serving allegations in the Complaint [1] and at the hearing.
3. Analysis
Having conducted a de novo of the record in its entirety, the Court concludes that the findings in the Magistrate Judge's Report and Recommendation [101] command substantial weight, particularly his determination that Walker's imminent danger claims and her testimony are not credible. See, e.g., R.&R. [101] at 7; see also 28 U.S.C. § 636(b)(1); Raddatz, 447 U.S. at 674. As detailed above, Walker's allegations in the Complaint and at the hearing of ideations and attempts of suicide, as well as instances of self-harm, are plainly belied by the voluminous medical records that have been submitted by her and by Defendants. Having conducted the required review, see Raddatz, 447 U.S. at 674, the Court agrees with the Magistrate Judge's findings.
Moreover, Walker seems to concede in her Objection [106] that she has not been suicidal, but fears that she will become suicidal in the future. See Obj. [106] at 28 (“Plaintiff['s] claim is not that she is suicidal but that she will become suicidal and do other things, if not treated.”). The fact that Walker has changed her theory of imminent danger throughout this case lends further support to the Magistrate Judge's finding that Walker's imminent danger assertions are not credible.
The Court concludes Walker misrepresented that she was in imminent danger both in her Court filings and under oath at the evidentiary hearing before the Magistrate Judge. See 28 U.S.C. § 1915(g); Fed.R.Civ.P. 11(b). Based upon the record, the Court finds that Walker was not in “under imminent danger of serious physical injury” either at the time she filed the Complaint or the Motion for leave to proceed IFP. Id. The Court relied on Walker's allegations of imminent danger to provisionally grant leave to proceed IFP. See Order [8]. But with the benefit of a further-developed record, the Court finds that those initial allegations constituted intentional misrepresentations by Walker to circumvent her barred status under § 1915(g) and to induce the Court to grant her IFP Motion. Thus, Walker's IFP status should be revoked. See, e.g., Watts v. Pickett, No. 5:17-CV-38-DCB-MTP, 2018 WL 5986755, at *1 (S.D.Miss. Nov. 14, 2018) (denying motion for reconsideration of the court's order revoking plaintiff's IFP status because the “Spears hearing and the protective measures Wilkinson County Correctional Facility implemented post-assault show that [the plaintiff] was not in ‘imminent danger of serious physical injury' at the time he filed this suit.”).
In a separate case, the Court previously assessed Walker a monetary sanction of $50.00 for a malicious filing. See Walker v. Hunt, No. 1:19cv269-LG-RHW, Doc. 3 (S.D.Miss. June 21, 2019). Walker has not shown that she has satisfied this sanction, nor is the Court aware that she has. Since the Court will revoke Walker's permission to proceed as a pauper, and because the Court has not received payment of the filing fee for this civil action or the previously imposed sanction, this case will be dismissed without prejudice.
D. Whether Walker should be further sanctioned
In light of Walker's actions in this case as well as those in the numerous other civil cases that she has filed in this Court, the Court finds that further sanctions should be imposed based on Walker's malicious and abusive filing history. Specifically, the Court has attached a list of cases filed by Walker that it has been able to locate, although it cannot be certain that this is an exhaustive list. See Attachment “A” to this Order. Several of Walker's cases were duplicates of others she had previously instituted, which required the Court to consider multiple lawsuits alleging the same claims. See id.; see also, e.g., Drake v. Navistar Int'l Corp., 611 Fed.Appx. 235, 237 (5th Cir. 2015) (“The district court did not abuse its discretion by revoking [the plaintiff's] IFP status and imposing pre-filing sanctions based on [his] abusive filing history, consisting of multiple lawsuits in state and federal courts arising from the same series of events.”). Such duplication further wastes judicial resources.
This attachment does not include the approximately 20 habeas petitions Walker has filed in this Court.
Not only does Walker persistently institute an inordinate amount of litigation in spite of her barred status, she also litters the record in each case she files with a continuous barrage of often-nonsensical motions and other filings, frequently at a blistering pace. For example, in this case the Court was forced to prohibit Walker from filing any more documents until it could resolve eleven other Motions pending before it, ten of which were filed by her in less than a two-month time period. See Text Order, March 22, 2022. Walker's ceaseless actions have overburdened the limited resources of this Court on numerous occasions.
This is not the first time Walker has moved to proceed IFP as a sanctioned litigant and failed to demonstrate that she was in imminent danger of serious physical injury. See Attachment “A.” Indeed, the accumulation of “three strikes” has not deterred Walker from continuously filing new frivolous or duplicative civil actions in this and other courts around the country, many of which have been dismissed under the three-strikes provision in § 1915(g). For these reasons, the Court finds that additional sanctions are warranted.
While not dispositive here, the Court also finds that sanctions would be warranted based upon Walker's false allegations of imminent harm made in her Complaint [1] and under oath at the evidentiary hearing.
The Fifth Circuit requires a district court use “the least onerous sanction which will address the offensive conduct.” Brown v. Oil States Skagit Smatco, 664 F.3d 71, 78 (5th Cir. 2011). A court must consider whether lesser sanctions would serve the best interests of justice. See id. at 77.
Due to Walker's history of frivolous, meritless, and vexatious litigation, on April 2, 2019, the Northern District of Mississippi entered an order that required Walker to “provide some documentary evidence tending to show that the events alleged actually occurred” before he may file suit in that court in the future. See Walker v. Turner, No. 4:18cv48-GHD-DAS, No. 4:18-cv-48, Doc. 102 (N.D. Miss. Apr. 2, 2019). Despite being aware that such a sanction could be imposed in this Court, Walker has not been deterred and has continued her onslaught of frivolous, meritless, and vexatious filings.
Under its inherent authority and its obligation to protect the orderly administration of justice, and to curtail the future filing of repetitive and voluminous frivolous pleadings, the Court will bar Walker from filing any new case in this Court, unless she either is granted leave to proceed IFP by the Court or, at the time she files her complaint, pays both the entire applicable filing fee and the outstanding $50.00 sanction imposed by the Court in case number 1:19cv269-LG-RHW. In order to seek IFP to file a new complaint, Walker must first submit her proposed complaint and any motion to proceed IFP, with documentary proof of any imminent danger of serious physical injury, for the Court's consideration. See 28 U.S.C. § 1915(g). The Court finds that any lesser sanction would not serve the best interests of justice. See Brown, 664 F.3d at 77.
III. CONCLUSION
IT IS, THEREFORE, ORDERED AND ADJUDGED that, Plaintiff Demario Dontez Walker's Objections [106], [107], [110] to the Report and Recommendation [101] are OVERRULED, and the Report and Recommendation [101] of United States Magistrate Judge Robert H. Walker entered in this case on July 8, 2022, is ADOPTED.
IT IS, FURTHER, ORDERED AND ADJUDGED that, the Court's April 29, 2021, Order [8] granting Plaintiff Demario Dontez Walker's Motion [4] for Leave to Proceed in forma pauperis is WITHDRAWN; and upon reconsideration the Motion [4] for Leave to Proceed in forma pauperis is DENIED; and Walker's in forma pauperis status is REVOKED pursuant to 28 U.S.C. § 1915(g).
IT IS, FURTHER, ORDERED AND ADJUDGED that, this case is DISMISSED WITHOUT PREJUDICE, and a separate final judgment shall issue pursuant to Federal Rule of Civil Procedure 58.
IT IS, FURTHER, ORDERED AND ADJUDGED that, Plaintiff Demario Dontez Walker is hereby SANCTIONED in that Plaintiff is BARRED from filing any future complaints or initial civil pleadings of any kind in the United States District Court for the Southern District of Mississippi, unless she either has been granted prior leave to proceed in forma pauperis by the Court, or prepays at the time she files her complaint both the entire applicable filing fee and the outstanding $50.00 sanction imposed by the Court in case number 1:19cv269-LG-RHW.
IT IS, FURTHER, ORDERED AND ADJUDGED that, in order to seek leave to proceed in forma pauperis to file a future complaint or initial civil pleading of any kind, Demario Dontez Walker must seek preapproval from the Court by submitting her proposed complaint and any motion to proceed in forma pauperis, with documentary proof of any imminent danger of serious physical injury, to the Court for consideration.
IT IS, FURTHER, ORDERED AND ADJUDGED that, the Clerk of Court is directed to refuse to file any future complaints or initial civil pleadings of any kind on behalf of Demario Dontez Walker unless: (1) payment of both the $50.00 sanction imposed by the Court in case number 1:19cv269-LG-RHW and the entire applicable filing fee for the proposed new complaint is received by the Clerk at the time of filing; or (2) the pleading is accompanied by advance written authority from a United States District or Magistrate Judge of this Court.
IT IS, FURTHER, ORDERED AND ADJUDGED that, Demario Dontez Walker is WARNED that any future frivolous, repetitive, vexatious, or abusive filings before the Court will invite the imposition of additional sanctions, which may include dismissal and further monetary sanctions.
IT IS, FURTHER, ORDERED AND ADJUDGED that, Demario Dontez Walker is WARNED that she should review any pending actions and move to dismiss any cases, or withdraw any motions, that are frivolous, repetitive, or otherwise abusive.
SO ORDERED AND ADJUDGED, this the 14th day of October, 2022.
Attachment “A” Demario Dontez Walker (a/k/a Kiriyama Zyreonia San Givonni)
Section 1983 cases filed in the Southern District of Mississippi (in chronological order by date of filing of complaint):
Case # Date Filed Disposition 1. 2:02-cv-632-RHW 8/14/2002 Jury verdict in defendants' favor 2. 2:02-cv-633-CWP 8/14/2002 Notice of Voluntary Dismissal 3. 2:02-cv-634-CWP 8/14/2002 Notice of Voluntary Dismissal 4. 2:02-cv-913-CWP 12/27/2002 Notice of Voluntary Dismissal 5. 3:03-cv-312-HTW 2/25/2003 Notice of Voluntary Dismissal 6. 2:03-cv-551-CWP 11/12/2003 Brought by Walker and another inmate on behalf of others similarly situated; case was severed into two individual actions 7. 2:03-cv-598-KS-MTP 12/10/2003 From severance of 2:03-cv-551-CWP; dismissed without prejudice for failure to comply with Court orders 8. 3:04-cv-140-TSL-JCS 2/25/2004 Dismissed with prejudice for failure to state claim 9. 2:04-cv-247-DMR 7/27/2004 Brought by Walker and another inmate, and the case was severed into two individual actions 10. 2:04-cv-263-KS-RHW 8/9/2004 Dismissed as duplicative of 2:03cv598-KS-MTP 11. 2:04-cv-397-KS-MTP 12/8/2004 Dismissed without prejudice for failure to prosecute 12. 3:04-cv-984-TSL-JCS 12/13/2004 Dismissed without prejudice for failure to prosecute 13. 2:05-cv-126-KS-JMR 5/11/2005 Dismissed without prejudice for failure to prosecute 14. 3:05-cv-554-TSL-JCS 9/13/2005 Dismissed without prejudice for failure to prosecute 15. 2:07-cv-52-MTP 3/13/2007 Agreed Order of Dismissal entered 10/29/2007 after settlement. Walker continued to file a host of motions which the Court denied, and Walker appealed. The appeal was dismissed for want of prosecution. 16. 2:07cv242-KS-MTP 10/10/2007 Dismissed without prejudice for failure to prosecute 17. 3:08-cv-96-TSL-JCS 2/15/2008 Some claims dismissed with prejudice as malicious as duplicative of earlier action on same issue that was dismissed with prejudice, 3:04-cv-140-TSL-JCS; remaining claims dismissed as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i) 18. 5:08-cv-147-JMR 2/15/2008 Defendants' motion for summary judgment granted on the merits 1 19. 3:08-cv-132-HTW-LRA 2/29/2008 Claims under 42 U.S.C. § 1983 dismissed as frivolous as not cognizable under § 1983; habeas claims dismissed without prejudice 20. 3:08-cv-275-TSL-JCS 4/30/2008 IFP denied and case dismissed, with direction to Clerk to reopen if full filing fee was paid within 30 days 21. 5:08-cv-221-DCB- MTP 6/17/2008 Dismissed as duplicative of pending case 5:08-cv-147-DCB-MTP 22. 2:08-cv-142-KS-MTP 7/10/2008 Voluntary dismissal 23. 3:08-cv-452-DPJ-JCS 7/22/2008 IFP denied and case dismissed, with direction to Clerk to reopen if full filing fee was paid within 30 days 24. 3:08-cv-459-TSL-JCS 7/25/2008 IFP denied and case dismissed, with direction to Clerk to reopen if full filing fee was paid within 30 days 25. 2:08-cv-161-KS-MTP 8/5/2008 IFP denied and case dismissed, with direction to Clerk to reopen if full filing fee was paid within 30 days 26. 2:08-cv-182-KS-MTP 8/25/2008 Notice of Voluntary Dismissal 27. 2:08-cv-183-KS-MTP 8/25/2008 IFP denied and case dismissed, with direction to Clerk to reopen if full filing fee was paid within 30 days 28. 2:08-cv-194-KS-MTP 9/3/2008 IFP denied and case dismissed, with direction to Clerk to reopen if full filing fee was paid within 30 days 29. 2:08-cv-217-KS-MTP 9/30/2008 IFP denied and case dismissed, with direction to Clerk to reopen if full filing fee was paid within 30 days 30. 3:08-cv-647-WHB-LRA 10/21/2008 IFP denied and case dismissed, with direction to Clerk to reopen if full filing fee was paid within 30 days 31. 2:08-cv-233-KS-MT 10/27/2008 IFP denied and case dismissed, with direction to Clerk to reopen if full filing fee was paid within 30 days 32. 2:08-cv-235-KS-MTP 10/28/2008 IFP denied and case dismissed, with direction to Clerk to reopen if full filing fee was paid within 30 days 33. 5:09-cv-13-DCB-MT 2/9/2009 IFP denied and case dismissed, with direction to Clerk to reopen if full filing fee was paid within 30 days 34. 2:09-cv-28-KS-MTP 2/12/2009 IFP denied and case dismissed, with direction to Clerk to reopen if full filing fee was paid within 30 days 2 35. 2:09-cv-128-KS-MTP 7/14/2009 Notice of Voluntary Dismissal after Court required completion of questionnaire concerning imminent danger 36. 4:09-cv-120-HTW-LRA 9/14/2009 Notice of Voluntary Dismissal 37. 4:09-cv-127-TSL-LRA 9/25/2009 IFP denied and case dismissed, with direction to Clerk to reopen if full filing fee was paid within 30 days 38. 3:09-cv-699-HTW-LRA 11/20/2009 IFP denied and case dismissed, with direction to Clerk to reopen if full filing fee was paid within 30 days 39. 4:10-cv-201-HTW-LRA 12/1/2010 IFP denied and case dismissed, with direction to Clerk to reopen if full filing fee was paid within 30 days 40. 3:12-cv-364-HTW-LRA 5/29/2012 Complaint brought on behalf of Walker and 3 others; severed into 4 cases and Complaint dismissed without prejudice 41. 3:12-cv-441-CWR-LRA 6/29/2012 Severed from 3:12-cv-364-HTW-LRA; denied IFP and dismissed case, with direction to Clerk to reopen if full filing fee was paid within 30 days 42. 3:12-cv-650-CWR-LRA 9/18/2012 Denied IFP and dismissed case, with direction to Clerk to reopen if full filing fee was paid within 30 days 43. 1:17-cv-27-RHW 2/1/2017 Defendants' motion for summary judgment granted and case dismissed without prejudice for failure to exhaust 44. 1:17-cv-244-LG-RPM 9/7/2017 Dismissed for failure to substitute proper party and for failure to prosecute 45. 1:17-cv-283-LG-RHW 10/10/2017 Denied IFP for three strikes and no imminent danger; case dismissed as duplicative of 1:17-cv-244-LG-RHW 46. 1:17-cv-298-HSO- JCG 10/19/2017 Denied IFP for three strikes and no imminent danger; case dismissed as duplicative of 1:17-cv-244-LG-RHW. Walker was warned that “his continued filing of duplicative lawsuits or civil actions determined to be abusive filings will invite the imposition of sanctions.” Order [4] at 5 (filed restricted access). 47. 3:17-cv-995-CWR- FKB 12/11/2017 Denied IFP for three strikes and no imminent danger, and case dismissed duplicative of No. 1:17-cv-27-RHW. Walker was warned that “continuing to file duplicative lawsuits or civil actions determined to be abusive filings will invite the imposition of sanctions, including dismissal, monetary sanctions, 3 and/or restrictions on his ability to file pleadings in this Court.” Order [9] at 6 (filed restricted access). 48. 3:18-cv-804-TSL- RHW 11/19/2018 Denied IFP for three strikes and no imminent danger, and case dismissed without prejudice 49. 1:19-cv-246-LG-RPM 4/19/2019 Case pending; IFP granted, but a pending Report and Recommendation [260] recommends revoking IFP status and sanctioning Walker, and that Walker be prohibited from filing future lawsuits unless he meets a heightened pleading standard. 50. 1:19-cv-269-LG-RHW 5/8/2019 Dismissed as malicious for duplicating claims filed in 1:19-cv-246-LG-RHW; Walker was sanctioned $50. “Walker[was] cautioned that if he files any additional duplicative or malicious pleadings it will lead to the imposition of additional sanctions, including but not limited to increased monetary fines or restrictions on his ability to file pro se actions in this Court.” Order [3] at 4 (emphasis in original). 51. 3:19-cv-468-HTW-LRA 7/3/2019 IFP denied and case dismissed, with direction to Clerk to reopen if full filing fee was paid within 30 days 52. 3:19-cv-794-DPJ- FKB 11/6/2019 Denied IFP for three strikes and no imminent danger, and case dismissed without prejudice 53. 1:20-cv-197-HSO- RPM 6/12/2020 Case pending 54. 1:20-cv-198-LG-RPM 6/12/2020 Denied IFP for three strikes and no imminent danger, and case dismissed without prejudice 55. 1:20-cv-199-HSO- JCG 6/12/2020 Denied IFP for three strikes and no imminent danger, and case dismissed without prejudice 56. 1:20-cv-280-LG-RPM 8/28/2020 Denied IFP for three strikes and no imminent danger, and case dismissed without prejudice 57. 1:20-cv-298-HSO- JCG 9/18/2020 Denied IFP for three strikes and no imminent danger, and case dismissed without prejudice 58. 1:20-cv-302-HSO- BWR 9/23/2022 This case 4 Case Filing Date Disposition 1. W.D. Tex., 1:08-cv-381-LY 5/12/2008 Defendants' motions to dismiss granted for failure to state a claim 2. S.D. Tex., 4:08-CV-1555 5/16/2008 Dismissed as duplicative of 1:08cv381-LY (W.D. Tex.); photocopy of that complaint filed in the Southern District of Texas. 3. S.D. Ca., 3:08-cv-1314-JAH-LSP 7/21/2008 Dismissed for seeking monetary damages against immune defendants and for failing to state a claim upon which relief could be granted. 4. E.D.N.Y., 1:08-cv-3025- ENV-LB 7/22/2008 Dismissed as frivolous upon finding that Walker's factual contentions were clearly baseless concerning his presence in New York 5. M.D. Fl. 3:08-mc-31-HLA- MCR 8/11/2008 Walker filed for IFP before filing a complaint; IFP request denied without prejudice to Walker filing a complaint 6. S.D. Ca., 3:08-cv-1504-JLS-NLS 8/15/2008 Dismissed as frivolous 7. M.D. Fl., 3:08-cv-844-TJC-TEM 9/2/2008 IFP denied and case dismissed 8. D. Nev., 2:08-cv-1602-RLH-LRL 11/17/2008 Voluntarily dismissed 9. W,D, Va., 7:08-cv-591-JLK-mfu 11/17/2008 IFP denied for 3 strikes and case dismissed 10. S.D. Al., 1:09-cv-501-CG-C 8/5/2009 Rescinded grant of IFP upon learning Walker had 3 strikes under 28 U.S.C. § 1915(g); case dismissed without prejudice because court found no imminent danger 11. D. Me., 1:09-cv-624-GZS 12/14/2009 Dismissed for no actual case or controversy 12. N.D. Miss., 4:18-cv-48-GHD-DAS 2/21/2018 Dismissed as vexatious; Walker is now required to present documentary proof of allegations before he may file suit in Northern District of Mississippi in the future. 5 # Case Disposition 1. Fifth Cir. No. 05-60575 Dismissed for want of prosecution 2. Fifth Cir. No. 08-20485 Affirmed district court's dismissal of complaint as duplicative of another federal lawsuit 3. Second Cir. No. 08-5836-pr IFP denied and appeal dismissed for lack of arguable basis in law or fact 4. Fifth Cir. No. 08-60691 Dismissed as frivolous and sanction warning issued 5. Fifth Cir. No. 08-60753 Motion to voluntarily dismiss appeal granted 6. Fifth Cir. No. 08-60779 Dismissed for want of prosecution 7. Fifth Cir. No. 08-60830 Dismissed for want of prosecution 8. Fifth Cir. No. 08-60913 Dismissed for want of prosecution 9. Fifth Cir. No. 08-60975 Dismissed for want of prosecution 10. Fifth Cir. No. 09-50644 Dismissed for want of prosecution 11. Fifth Cir. No. 09-60217 Dismissed for want of prosecution 12. Fifth Cir. No. 09-60527 Dismissed for want of prosecution 13. Fifth Cir. No. 17-60511 Dismissed for want of prosecution 14. Fifth Cir. No. 19-60266 Dismissed for want of prosecution 15. Fifth Cir. No. 19-60281 Dismissed for want of prosecution 16. Fifth Cir. No. 20-61027 Dismissed for want of prosecution 17. Fifth Cir. No. 20-61165 Dismissed for want of prosecution 18. Fifth Cir. No. 21-60044 Dismissed for want of prosecution 6