Opinion
CIVIL ACTION NO. 4:15-CV-3391
11-19-2015
TERRY MATTHEW DAVIS, Plaintiff, v. MR JOHNSON, et al, Defendants.
MEMORANDUM AND ORDER
Terry Matthew Davis, an inmate incarcerated at the Stringfellow Unit of the Texas Department of Criminal Justice, Correctional Institutions Division, has filed a prisoner civil rights complaint. Davis has not paid the filing fee. This action will be dismissed pursuant to the provisions of 28 U.S.C. § 1915(g).
Barring a show of imminent danger, under the Prison Litigation Reform Act of 1995, a prisoner may not file an action without prepayment of the filing fee if he has, on three or more prior occasions, filed a prisoner action in federal district court or an appeal in a federal court of appeals which was dismissed as frivolous or malicious. 28 U.S.C. § 1915(g); Adepegba v. Hammons, 103 F.3d 383, 385 (5th Cir. 1996). Davis accumulated at least five such dismissals before filing the pending complaint, and is no longer allowed to proceed in forma pauperis pursuant to the provisions of section 1915(g). See Davis v. Hendry, No. 4:12cv3640 (S.D. Tex. Apr. 22, 2013); Davis v. Hendry, No. 4:12cv3620 (S.D. Tex. Apr. 22, 2013); Davis v. Sgt./Lt. of Classification, No. 4:13cv98 (S.D. Tex. (Jan. 17, 2013); Davis v. Rowell, No. 4:12cv3601 (S.D. Tex. Jan. 11, 2013); Davis v. Martinez, No. 4:12cv3598 (S.D. Tex. Dec. 21, 2012). Davis' allegations do not plead any facts showing that he is in any immediate danger which would warrant waiver of the fee requirement. See Choyce v. Dominguez, 160 F.3d 1068, 1071 (5th Cir. 1998); Banos v. O'Guin, 144 F.3d 883, 884 (5th Cir. 1998).
In light of the pleadings and his litigation history, Davis has failed to show that he is eligible to proceed as a pauper and has also failed to assert a claim that has any legal basis. Consequently, this action should be dismissed pursuant to 28 U.S.C. § 1915(g) and 28 U.S.C. § 1915(e). This dismissal shall count as a strike under section 1915(g).
The court ORDERS that the Prisoner Civil Rights Complaint (Docket Entry No. 1), filed by TDCJ-CID Inmate Terry Matthew Davis, TDCJ-CID No. 01948635 is DISMISSED. 28 U.S.C. § 1915(g); 28 U.S.C. § 1915(e).
The Clerk is directed to provide a copy of this Memorandum Opinion and Order to the parties and to the TDCJ - Office of the General Counsel, P.O. Box 13084, Austin, Texas 78711, Fax Number (512) 936-2159.
SIGNED on this 19th day of November, 2015.
/s/_________
Kenneth M. Hoyt
United States District Judge