Opinion
Civil Action 6:23cv615
12-26-2023
THOMAS H. CLAY v. TDCJ-CID, ET AL.
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
K. NICOLE MITCHELL, UNITED STATES MAGISTRATE JUDGE
The Plaintiff Thomas Clay, a prisoner currently confined in the Texas Department of Criminal Justice - Correctional Institutions Division, filed this civil rights lawsuit under 42 U.S.C. §1983 complaining of alleged deprivations of his constitutional rights. The lawsuit was referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate Judges. The named Defendants include TDCJ-CID, the Correctional Managed Care Department of the University of Texas Medical Branch, the TDCJ Parole Release and Process Department, nurses named Kent, Hagan, and Osa, a CCA named Coker, a medical director named Wyn, and TDCJ employees including Sgt. Mills and Officer Love.
Plaintiff states that he has required use of a wheelchair since 2013. Although his medical file says “in/out of cell wheelchair use,” TDCJ officials keep confiscated it. This began in 2017 and 2018 at the Estelle Unit, and then Plaintiff suffered a “retaliatory transfer” to the Gib Lewis Unit in 2020. His wheelchair was confiscated there and he was assaulted, resulting in the dislocation of his left hip and right shoulder.
In February of 2022, Plaintiff says that he was transferred to the Michael Unit, apparently in retaliation again. He describes a number of problems he had at the Michael Unit, including having his wheelchair confiscated and returned multiple times. He says that a nurse manager at the Michael Unit named Teddi Aukers repeatedly retaliated against him and sought to interfere with his medical care, including by altering his medical records.
Plaintiff states that he was scheduled to go to Hospital Galveston for the orthopedic surgery clinic in November of 2022. He says that he had an infection known as MRSA which caused wound complications and skin problems. The officers would not honor his no shackle restrictions and put metal shackles on his legs, which caused indentations and abrasions on his left ankle. He saw the surgeon on November 3 and was returned to the Michael Unit the next day.
After he returned to the Michael Unit, Plaintiff states that he did not get his wheelchair back. On December 5, a cyst ruptured, and he showed all of the sick call nurses but no effort was made to locate a wheelchair. On December 8, he was finally taken in a wheelchair to see a provider, who ordered daily wound care, infirmary housing, and in-cell wheelchair use. He was moved to 10 Building, but Aukers and practice manager Pam Pace conspired to have him sent back to 12 Building. He contends that he stayed in a non-handicap cell until February of 2023, at which time he had a parole interview.
On May 1, 2023, Plaintiff says that he was notified that his parole had been granted. The letter included a code indicated that he would be released from prison within 45 days. On May 6, he was told to pack his property because he was being transferred to the Gib Lewis Unit. He was given back his wheelchair and transported to the Gib Lewis Unit; however, he was only there until May 15, at which time he was told he was being transferred to the Estelle Unit.
When he arrived at the Estelle Unit, Plaintiff states that he was placed in D-wing 102 cell with his property and wheelchair. The next morning, he went before the unit classification committee and was told that he had been transferred for placement in a pre-release program. He was placed in a cell with a medical shower, but with barely enough room to use his wheelchair. Plaintiff says that he received his certificate for completing the pre-release program on July 31, 2023, but he was not released.
Plaintiff complains that while he received wound care, he was not treated for the injuries caused by the application of the shackles on his legs. He says that CCA Ronda Coker, on whom he had filed charges, prejudiced the medical staff by saying that Plaintiff was a hypochondriac, a manipulator, and a malingerer. Plaintiff complains at length about the medical care he received at the Estelle Unit, including from the named defendants Nurse Practitioner John Osa and Nurse Kent.
Plaintiff acknowledges that he has three strikes under 28 U.S.C. §1915(g) and thus cannot proceed in forma pauperis absent a showing of imminent danger of serious physical injury. However, he argues that the facts which he has set forth demonstrate such an imminent danger. He also argues that the imposition of sanctions under §1915(g) upon him is “positively void” because all of his cases are “non-strike final judgments.”
Plaintiff further says that in two recent cases, the Eastern District has made “unauthorized rulings without jurisdiction” by enforcing an “additional filing injunction order” imposed by the Southern District of Texas. He says that this order did not prohibit any filings under the imminent danger exception and thereby created a “conflict of law.”
II. Discussion
The Plaintiff Thomas Clay has filed at least thirty prior federal lawsuits and has filed some 44 actions or appeals with the Fifth Circuit Court of Appeals. At least four of these prior actions or appeals have been dismissed as frivolous or for failure to state a claim upon which relief may be granted. See, e.g., Clay v. UTMBH Estelle Unit Medical Employees, 752 Fed.Appx. 195, 2019 U.S. App. LEXIS 3998 (5th Cir., February 8, 2019) (stating that Plaintiff “has a history of filing frivolous civil actions” and “is barred under the three-strikes provision in 28 U.S.C. § 1915(g) from proceeding in forma pauperis (IFP) in any civil action filed while incarcerated or detained in any facility unless he is under imminent danger of serious physical injury.”)
In Clay v. State Classification Department of TDCJ, civil action no. 1:22cv21, 2022 U.S. Dist. LEXIS 117123, 2023 WL 2398520 (E.D.Tex., January 19, 2022), Report adopted at 2022 U.S. Dist. LEXIS 116903, 2022 WL 2392459 (E.D.Tex., July 1, 2022), appeal dismissed as frivolous and sanctions imposed slip op. no. 22-40507, 2023 U.S. App. LEXIS 6790, 2023 WL 2586325 (5th Cir., March 21, 2023), Plaintiff complained of an alleged retaliatory transfer from the Gib Lewis Unit to the Polunsky Unit in 2021, as well as the conditions of confinement at the Polunsky Unit. The district court determined that Plaintiff's unsupported allegations did not demonstrate that he was in serious physical injury at the time he filed his complaint because his disagreements with his medical care were insufficient to show imminent danger.
The district court also observed that in Clay v. Zeon, cause no. 4:14cv57, the U.S. District Court for the Southern District of Texas barred Plaintiff from filing any new civil actions in forma pauperis until the filing fee for that case had been paid. Because that fee had not been paid, the district court enforced the Southern District's sanction and barred him from filing on that basis as well.
On appeal, the Fifth Circuit reiterated that Plaintiff has three strikes and rejected his assertion that his prior dismissals did not qualify as countable strikes. The Fifth Circuit affirmed the district court's reliance on Clay v. Zeon in enforcing the sanctions imposed by the Southern District and rejected Plaintiff's claim of imminent danger. The court observed that Plaintiff was at the Michael Unit when he filed his notice of appeal but his claims concerned the Polunsky Unit, stating that Plaintiff did not plausibly allege that his experiences at the Polunsky Unit were connected to the Michael Unit in any way. The Fifth Circuit also characterized Plaintiff's claims of imminent danger as “speculative, vague, and conclusory allegations.”
The Fifth Circuit further imposed additional sanctions on Plaintiff, stating that “because Clay continues to file frivolous pleadings and previously was warned that future frivolous or repetitive filings would subject him to further sanctions, he is ORDERED to pay a monetary sanction in the amount of $100 payable to the clerk of this court. Clay is BARRED from filing any pleading in this court or in any court subject to its jurisdiction until the sanction is paid unless he first obtains leave of the court in which he seeks to file a pleading.”
Plaintiff has sought leave to file the present case, asserting that he is in imminent danger.
However, as in his previous cases, his claims of imminent danger are speculative, vague, and conclusory. More significantly, Plaintiff brings claims regarding his medical care at the Michael Unit and the Estelle Unit, of which only the Michael Unit is in the Eastern District of Texas. Because he was at the Estelle Unit at the time he filed his lawsuit, he could not be in imminent danger regarding his claims occurring at the Michael Unit. See Summers v. Livingston, civil action no. 1:12cv135, 2014 U.S. Dist. LEXIS 65079 (E.D. Tex., March 12, 2014), Report adopted at 2014 U.S. Dist. LEXIS 64393, 2014 WL 1877437 (E.D. Tex., May 5, 2014) (plaintiff's complaint involved incidents at the Stiles Unit, but was filed after his transfer to the Darrington Unit, so he was not in imminent danger from the events of his complaint at the time he filed his lawsuit, and he was barred from proceeding in forma pauperis); see also Denby v. Garcia, civil action no. 6:21cv490, 2022 U.S. Dist. LEXIS 46920, 2022 WL 819216 (E.D. Tex., February 28, 2022), Report adopted at 2022 U.S. Dist. LEXIS 47220, 2022 WL 811052 (E.D.Tex., March 16, 2022, appeal dismissed) (inmate at Hughes Unit was not in imminent danger from officials at the Coffield Unit).
Thus, Plaintiff has not paid the filing fee in this case, nor has he satisfied the imminent danger exception set out in 28 U.S.C. §1915(g). A review of the docket in Clay v. Zeon does not show that Plaintiff has paid the filing fee as required by the sanction imposed in that case. This Court, the Eastern District of Texas, is bound by the sanctions imposed by the Fifth Circuit Court of Appeals and honors sanctions imposed by other federal district courts in the State of Texas. See General Order No. 94-6 (E.D.Tex., February 2, 1994); Balawajder v. Scott, 160 F.3d 1066, 1068 (5th Cir. 1998). Because Plaintiff has not satisfied the sanctions which have been imposed upon him, he may not proceed until he provides proof that he has done so. He must also satisfy the requirements of §1915(g).
RECOMMENDATION
It is accordingly recommended that the Plaintiff's request for leave to file his pleadings and his motion for leave to proceed in forma pauperis be denied. It is further recommended that the above-styled civil rights lawsuit be dismissed with prejudice as to the refiling of another in forma pauperis lawsuit raising the same claims as herein presented, but without prejudice to the refiling of this lawsuit upon the satisfaction of three conditions: (1) proof of satisfaction of the $100.00 sanction imposed by the Southern District of Texas; (2) receipt of written permission to file a new lawsuit or proof of payment of the $100.00 sanction imposed by the Fifth Circuit Court of Appeals; and (3) payment of the full filing fee in the present case or proof that Plaintiff is in imminent danger of serious physical injury as of the time of the filing of the complaint.
A copy of these findings, conclusions and recommendations shall be served on all parties in the manner provided by law. Any party who objects to any part of these findings, conclusions, and recommendations must file specific written objections within 14 days after being served with a copy.
In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the Magistrate Judge's proposed findings, conclusions, and recommendation where the disputed determination is found. An objection which merely incorporates by reference or refers to the briefing before the Magistrate Judge is not specific, and the district court need not consider frivolous, conclusive, or general objections. Battle v. United States Parole Commission, 834 F.2d 419, 421 (5th Cir. 1987).
Failure to file specific written objections will bar the objecting party from appealing the factual findings and legal conclusions of the Magistrate Judge which are accepted and adopted by the district court except upon grounds of plain error. Duarte v. City of Lewisville, 858 F.3d 348, 352 (5th Cir. 2017).
So ORDERED and SIGNED.