Opinion
No. 3:04-CV-0876-N.
July 13, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court in implementation thereof, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type of Case: This is a civil rights complaint brought by a state inmate pursuant to 42 U.S.C. § 1983. Plaintiff has neither paid the filing fee nor sought leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
Parties: Plaintiff is currently confined at the Jester IV Unit of the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID) in Richmond, Texas. Defendants are TDCJ-CID, Kaufman County Police Department, the State of Texas, and Rusty Grimes. The court has not issued process in this case.
Statement of Case: The complaint seeks a protective order and injunction to protect him from assailants, which include other prisoners as well as guards within TDCJ-CID, sheriff deputies who shot him a couple of times prior to his incarceration, and "any party who has deputies who shot him a couple of times prior to his incarceration, and "any party who has offended plaintiff." (Complaint at 1). Plaintiff alleges that he has had his teeth knocked out and that he suffered multiple concussions as a result of these prior incidents. (Id. at 2).
Findings and Conclusions: The Prison Litigation Reform Act (PLRA), enacted into law on April 26, 1996, amended 28 U.S.C. § 1915 as it relates to civil actions that prisoners file in federal court. Among the changes effected by the PLRA was the inclusion of 28 U.S.C. § 1915(g), also known as the "three-strike" provision. Section 1915(g) precludes a prisoner from bringing a civil action in forma pauperis if on three or more prior occasions, while confined as a prisoner, he filed civil actions or appeals in federal court which were dismissed, either by a district court or appellate court, as being frivolous, malicious, or for failing to state a claim.
A review of the Prisoner Litigation Index and the Court Clerk's records reflects that on January 31, 2000, the United States District Court for the Northern District of Texas, Dallas Division, dismissed one of Plaintiff's prior complaints as barred by three strikes. See Carter v. Grimes, et al., 3:99cv2690-X (N.D. Tex.). The district court adopted the findings, conclusions and recommendation of the magistrate judge that Plaintiff had filed at least three prior civil rights cases, each filed when he was incarcerated, which were dismissed as frivolous or for failure to state a claim. Id. (December 21, 1999, order adopting findings and conclusions which had been filed on December 7, 1999). Plaintiff did not appeal from the judgment dismissing the case as barred by three strikes.
Because Plaintiff has accumulated at least three "strikes," § 1915(g) precludes him from proceeding in this action in forma pauperis unless he alleges a claim of "imminent danger of serious physical injury" at the time he files the complaint.Banos v. O'Guin, 144 F.3d 883, 884 (5th Cir. 1998). The complaint in this case presents no claim that Plaintiff was in danger of physical injury at the time he filed this action. See Carson v. Johnson, 112 F.3d 818, 822-823 (5th Cir. 1997); Adepegba, 103 F.3d at 388. See also Banos v. O'Guin, 144 F.3d 883 (5th Cir. 1998). While Plaintiff complains in a conclusory fashion of past incidents which resulted in physical injuries, he identifies no employee at the Jester IV Unit who has made any specifically described threat sufficient to allege a colorable claim of "imminent danger of serious physical injury."
It is clear that the named individual Defendants, residing or working in Kaufman County, Texas, could not pose an imminent danger to Plaintiff during his confinement in Fort Bend County, Texas.
Because the complaint does not fall within the exception to the "three-strike rule" set out in § 1915(g), the District Court should bar Plaintiff from proceeding in forma pauperis, and give him an opportunity to pay the full filing fee of $150.00 or his action will be dismissed as barred by three strikes. See Adepegba, 103 F.3d at 388. RECOMMENDATION:
For the foregoing reasons, it is recommended that the District Court enter an order barring Plaintiff from proceeding in forma pauperis pursuant to 28 U.S.C. § 1915(g), and directing that this action be dismissed pursuant to § 1915(g) unless Plaintiff tenders the $150.00 filing fee within 30 days of the District Court's order.
A copy of this recommendation will be mailed to Plaintiff Lorenzo W. Carter, #543891, TDCJ, Jester IV Unit, Rt 2., Richmond, Texas 77469.