Opinion
No. 3:05-CV-0233-D.
March 14, 2005
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.
Parties: Plaintiff is currently confined at the Jordan Unit of the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID) in Pampa, Texas. Defendant is Alex Tandy, a Forth Worth lawyer. The court has not issued process in this case.
Statement of Case: The complaint is not a model of clarity. It appears that Plaintiff is seeking to sue Defendant, his defense counsel, for unethical practices which ultimately led to his conviction in state court.
Findings and Conclusions: Contemporaneously with the filing of the complaint, Plaintiff submitted a motion for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
On February 17, 2005, Plaintiff filed an "Inmate Request for Withdrawal" along with a letter requesting this court to fill-in his "old" TDCJ number on the form, so that the requisite filing fee can be forwarded to the court. On February 22, 2005, Plaintiff submitted a letter again requesting the court to provide him with his old TDCJ number so that he "can close out . . . [his] account in Huntsville." The court does not have access to Plaintiff's prior or "old" TDCJ number. Moreover, his certificate of inmate trust account, submitted along with his motion for leave to proceed in forma pauperis, reflects that he presently does not have any funds on deposit with TDCJ.
On February 22, 2005, Plaintiff also submitted a motion to change the spelling of his last name from "Craft" to "Kraft." This request is patently frivolous and should be denied. Plaintiff signed all pleadings in this case as "Craft." Moreover, his certificate of inmate trust account reflects his name as "Craft" not "Kraft."
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. 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 filed by prisoners 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 U.S. Party Case Index reflects that on September 11, 1996, this court dismissed two of Plaintiff's prior civil rights actions as barred by the three-strike provision under § 1915(g), and ordered Plaintiff to pay a sanction of $120 for each dismissed case. See Attachment I for Craft v. Edwards, et al., 3:96cv2505-X (N.D. Tex., Dallas Div.); Craft v. Henery, et al., 3:96cv2507-X (N.D. Tex., Dallas). He did not appeal from the judgment dismissing either of the above cases; nor has he paid the monetary sanction.
The U.S. Party Case Index confirms Plaintiff filed numerous actions in this District while incarcerated as a prisoner. At least three of those actions were dismissed as frivolous or for failure to state a claim. See Nos. 3:96cv2505, 3:96cv2508 and 3:96cv2508.
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).
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:
Although the filing fee was raised to $250.00 effective February 7, 2005, the court will apply the filing fee in effect on the date Plaintiff filed suit.
For the foregoing reasons, it is recommended that the District Court enter an order denying Plaintiff's motion for leave to proceed in forma pauperis pursuant to the three-strike provision of 28 U.S.C. § 1915(g), and directing that this action be dismissed as barred by three strikes unless Plaintiff tenders the $150.00 filing fee within 30 days of the District Court's order.
It is further recommended that Plaintiff's motion to change the spelling of his last name should be denied.
A copy of this recommendation will be mailed to Plaintiff Marvin W. Craft, #707247, TDCJ, Jordan Unit, 1992 Hilton Road, Pampa, Texas 79065.
ATTACHMENT I
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION
MARVIN W. CRAFT,
Plaintiff,
v. CIVIL ACTION NO. 3:96-CV-2505-X BILLY JOHN EDWARDS, TEXAS DEPT. OF CRIMINAL JUSTICE FRENCH ROBERTSON UNIT and GRAIG A. RAINES,
Defendants. --------------------------- MARVIN W. CRAFT,
Plaintiff,
v. CIVIL ACTION NO. 3:96-CV-2507-X STEVE HENERY, BRYAN BURNS, NFN BRYAN, ROBERT O'DELL TEAFF HAYNES and GARY KARMUS,
Defendants.
ORDER
Now before the Court are Plaintiff's Original Complaints filed on September 3, 1996. These actions were previously referred to the Magistrate Judge. By this Order, that reference is withdrawn. After careful consideration of the original complaints, this plaintiff's history and the previous sanctions entered against him, the Court determines that the complaints should be, and are hereby, DISMISSED.
Plaintiff, an inmate confined at the French Robertson Unit, brings these suits against various individual defendants and institutions. On September 10, 1996, the Court dismissed three of Marvin Craft's 33 cases in the Northern District due to plaintiff's litigious history and his penchant for filing frivolous cases. These two cases must also be dismissed for the same reasons.
28 U.S.C. § 1915(g) provides that:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
Accordingly, the cases at bar should also be dismissed pursuant to § 1915(g). Marvin Craft has now filed a total of 33 civil rights actions in the Northern District of Texas this year. At the time of filing each such lawsuit, Plaintiff was confined at French Robertson Unit. It is readily apparent that, despite his repeated frivolous dismissals in this Court, Craft has persisted in exploiting the scarce resources of the judiciary for recreational purposes.
The Court ORDERS, ADJUDGES and DECREES that Plaintiff's complaint be dismissed with prejudice pursuant to 28 U.S.C. § 1915(g).
The Court FURTHER ORDERS, ADJUDGES and DECREES that he pay the filing fee of $120.00 for each case dismissed.
The Clerk of Court is ORDERED to place on the sanctioned parties list and to not accept for filing any pleading or papers submitted by unless (1) he has satisfied this monetary sanction and pays the applicable filing fee for any new lawsuit, or (2) first obtains leave of court to proceed in forma pauperis.
SO ORDERED.
Dated: September 11, 1996 ____________________________ JOE KENDALL UNITED STATES DISTRICT JUDGE
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION
MARVIN W. CRAFT,
Plaintiff,
v. CIVIL ACTION NO. 3:96-CV-2505-X
BILLY JOHN EDWARDS, TEXAS DEPT. OF CRIMINAL JUSTICE FRENCH ROBERTSON UNIT and GRAIG A. RAINES,
Defendants. ----------------------------
MARVIN W. CRAFT,
Plaintiff,
v. CIVIL ACTION NO. 3:96-CV-2507-X STEVE HENERY, BRYAN BURNS, NFN BRYAN, ROBERT O'DELL TEAFF HAYNES and GARY KARMUS,
Defendants.
FINAL JUDGMENT
In accordance with the Court's memorandum opinion and order dismissing the Plaintiff's Original Complaints dated September 11, 1996, it is ORDERED, ADJUDGED AND DECREED that judgment be entered for the Defendants and Plaintiff's claims be DISMISSED.
It is further ORDERED, ADJUDGED AND DECREED that costs of court be assessed against the party incurring said costs.
The Court instructs the Clerk of the Court to close the above-styled and -numbered actions.
SO ORDERED.
Dated: September 11, 1996.
____________________________ JOE KENDALL UNITED STATES DISTRICT JUDGE