Opinion
2:04-CV-0106.
April 30, 2004
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Plaintiff BURNS TILTON BOYD, acting pro se and while a prisoner incarcerated in the Texas Department of Criminal Justice, Correctional Institutions 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.
Under the "three strikes" provision of the Prison Litigation Reform Act, 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, unless the case fits into the narrow exception enumerated in Title 28, United States Code, section 1915(g). 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." Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996).
The Court notes that plaintiff BOYD has sustained at least three dismissals which fulfill the "three strikes" provision of the PLRA. Cause No. 6:96-CV-0048 was dismissed by the United States District Court for the Eastern District of Texas, Tyler Division, on February 16, 1996 as frivolous, and no appeal was taken; Cause No. 6:95-CV-1000 was dismissed for frivolousness by the United States District Court for the Eastern District of Texas, Tyler Division, on March 4, 1996, and no appeal was taken; Cause No. 6:96-CV-0078 was dismissed as frivolous by the United States District Court for the Eastern District of Texas, Tyler Division, on March 12, 1996, and no appeal was taken; and Cause No. 6:96-CV-0430 was dismissed as frivolous by the United States District Court for the Eastern District of Texas, Tyler Division, on July 10, 1996, and no appeal was taken.
Pursuant to Title 28, United States Code, section 1915(g), the Court FINDS plaintiff BURNS TILTON BOYD may not proceed in forma pauperis 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 Title 28, United States Code, section 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. Plaintiff has alleged no fact fulfilling the statutory exception as construed by the Fifth Circuit. Banos v. O'Guin, 144 F.3d 883, 885 (5th Cir. 1998).
CONCLUSION
For the reasons set forth above, plaintiff's motion to proceed in forma pauperis is DENIED.
The instant cause is DISMISSED WITHOUT PREJUDICE TO REFILING WITH PREPAYMENT OF THE FILING FEE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
All pending motions are DENIED.
IT IS SO ORDERED.