Opinion
2:01-CV-0005
February 21, 2001
REPORT AND RECOMMENDATION
Plaintiff GERALD LYNN BOLES, acting pro se and while a prisoner incarcerated in 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 and has submitted an application to proceed in forma pauperis.
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, un1ess 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 BOLES has sustained three dismissals which fulfill the "three strikes" provision of the PLRA. Cause no. 2:97-CV-0111 was dismissed by the United States District Court for the Northern District of Texas, Amarillo Division, on November 25, 1997, for failure to state a claim on which relief can be granted and for failure to exhaust administrative remedies before filing suit in federal court, and no appeal was taken; cause no. 9:98-CV-0304 was dismissed by the United States District Court for the Eastern District of Texas, Lufkin Division, on January 21, 1999, as duplicative of the claims asserted in cause no. 9:98-CV-0169, and no appeal was taken; and cause no. 9:98-CV-0169 was dismissed the United States District Court for the Eastern District of Texas, Lufkin Division, for failure to exhaust administrative remedies before filing suit in federal court, and no appeal was taken. The Court notes that, "[b]y choosing to file and pursue his suit prior to exhausting administrative remedies as required by statute, the plaintiff sought relief to which he was not entitled, that is, federal court intervention in prison affairs prior to the prison having had the opportunity to address the complaint within its grievance procedures." Underwood v. Wilson, 151 F.3d 292, 296 (5th Cir. 1998). Therefore, by seeking relief to which he was not entitled, plaintiff has failed to state a claim on which relief could be granted or has presented claims without an arguable basis in law. Further, "[r]epetitious litigation of virtually identical causes of action is subject to dismissal under 28 U.S.C. § 1915(d) as malicious." Bailey v. Johnson, 846 F.2d 1019 (5th Cir. 1988). Consequently, dismissal of each, cause no. 9:98-CV-0304 and cause no. 9:98-CV-0169, counted as a "strike" under the PLRA.
Pursuant to Title 28, United States Code, 1915(g), the Magistrate Judge FINDS plaintiff GERALD LYNN BOLES may not proceed in forma pauperis in any further new filings or appeals filed while a prisoner unless grounds are argued 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.
Because plaintiff has already sustained the "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 plaintiffs request to proceed in forma pauperis be denied 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 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)(l) 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.
Permission to proceed in forma pauperis is granted temporarily and solely for the purpose of allowing a Report and Recommendation to issue and be considered by the United States District Judge.
Plaintiff is advised that if he pays the $150.00 filing fee within fourteen (14) days after the filing date hereof, this Report and Recommendation of dismissal will be withdrawn.
IT IS SO ORDERED.