Opinion
No. 3-04-MC-0112-N.
January 6, 2005
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Plaintiff Timothy Randolph Wallace, a Texas prisoner who has been barred from filing any future lawsuits without leave of court, seeks leave to file a civil action in forma pauperis. For the reasons stated herein, his motion should be denied.
I.
Plaintiff alleges that he has been denied adequate amounts of food while housed in administrative segregation at the French Robertson Unit of the TDCJ-ID. Because plaintiff has filed three or more civil actions in federal court that were dismissed as frivolous, malicious, or for failure to state a claim, he is barred from proceeding in forma pauperis unless he demonstrates an "imminent danger of serious physical injury." See 28 U.S.C. § 1915(g). Plaintiff also has been sanctioned by a judge in the Western District of Texas for malicious and vexatious conduct. See Wallace v. Manning, W-00-CA-290 (W.D. Tex. Nov. 21, 2000), appeal dism'd, No. 00-51277 (5th Cir. Jan. 26, 2001). On March 27, 2003, another judge in this district prohibited the district clerk from accepting any future civil actions submitted by plaintiff, either directly or indirectly by transfer, "unless accompanied by the requisite filing fee or a separate affidavit or declaration that demonstrates that plaintiff is in imminent danger of serious physical injury." Wallace v. Cockrell, No. 3-02-CV-1807-M (N.D. Tex. Mar. 23, 2003). After that order was entered, plaintiff tendered two civil rights complaints challenging the conditions of his confinement. Both cases were summarily dismissed for failure to demonstrate "imminent danger of serious physical injury." See Wallace v. Cockrell, No. 3-03-MC-098-K (N.D. Tex. Nov. 14, 2003); Wallace v. Cockrell, No. 1-04-MC-012-C (N.D. Tex. Dec. 4, 2004). Undeterred, plaintiff now seeks leave to proceed in forma pauperis in yet another civil rights action challenging the conditions of his confinement at the French Robertson Unit of the TDCJ-ID.
That order lists seven cases filed by plaintiff in Texas federal court, at least three of which were dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2).
II.
In his motion and unsworn declaration, plaintiff alleges he has been denied food on four different occasions between November 26, 2004 and December 8, 2004. Plaintiff also complains that Christmas dinner consisted of one piece of turkey sandwiched between two slices of bread. As a result of his inadequate diet, plaintiff states he has lost five to 10 pounds in the last few months. Even if these allegations are proved, plaintiff's small weight loss and the deprivation of four meals over a two-week period do not constitute an "imminent danger of serious physical injury." See Talib v. Gilley, 138 F.3d 211, 214 n. 3 (5th Cir. 1998) (questioning whether loss of 15 pounds and deprivation of 50 meals over five-month period is actionable under 42 U.S.C. § 1983).
RECOMMENDATION
Plaintiff's motion for leave to file a civil action in forma pauperis should be denied and this miscellaneous proceeding should be closed.