Opinion
CIVIL ACTION NO. 3:17-CV-325
12-21-2017
BERNARD KIRK BARNES, Plaintiff, v. M BUTCHER, et al, Defendants.
ORDER OF DISMISSAL
Bernard Kirk Barnes (TDCJ #01952319), a Texas inmate, alleges that his Constitutional rights were violated during a prison disciplinary proceeding (Dkt. 1). Barnes is proceeding pro se and has requested permission to proceed in forma pauperis (Dkt. 2). Barnes is barred by statute from proceeding in forma pauperis.
A national case index reflects that, while incarcerated, Barnes has filed at least three previous civil actions that have been dismissed by federal courts as frivolous or for failure to state a claim. See Western District of Texas Case Numbers 5:91-CV-892 and 5:92-CV-1184 and Southern District of Texas Case Number 3:95-CV-235; see also Western District of Texas Case Number 5:99-CV-14 at Dkt. 42 (listing prior strikes). Under 28 U.S.C. § 1915(g), a prisoner is not allowed to bring a civil action in forma pauperis in federal court if he has, while incarcerated, filed three or more civil actions or appeals that have been dismissed as frivolous or malicious or for failure to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(g); Adepegba v. Hammons, 103 F.3d 383, 385 (5th Cir. 1996).
An exception exists for inmates who are "under imminent danger of serious physical injury." Id. To fit within the imminent-danger exception, a prisoner must demonstrate that imminent danger of serious physical injury exists at the time the plaintiff seeks to file his complaint. Banos v. O'Guin, 144 F.3d 883, 885 (5th Cir. 1998). Barnes's pleadings do not show that he was in such danger at the time he filed this lawsuit; his only complaint is that the defendants did not give him due process during a prison disciplinary proceeding.
The Court ORDERS as follows:
1. This case is DISMISSED without prejudice pursuant to 28 U.S.C. § 1915(g). The case will be reopened if, within thirty days of the date of this order, Barnes pays the filing fee in full.
The Clerk of this Court shall send a copy of this Order to the parties.
SIGNED at Galveston, Texas, this 21st day of December, 2017.
/s/_________
George C. Hanks Jr.
United States District Judge