Opinion
2:03-CV-0439.
April 27, 2004
REPORT AND RECOMMENDATION
Plaintiff JOSEPH SCOTT EZELL, acting pro se and while a prisoner incarcerated in the Texas Department of Criminal Justice, Institutional Division, has filed suit pursuant to Title 42, United States Code, Section 1983 complaining against the above-named defendants and has submitted a declaration in support of application to proceed in forma pauperis.
Careful reading of plaintiff's submission and the attached grievances reveals that, aside from his entreaties for a speedy death and his imprecations against both the state and federal judicial systems, he complains of interference with his mail and the deprivation of sixty days' of goodtime, which apparently was confiscated in compliance with Texas statute upon the dismissal of a second or third civil rights lawsuit as frivolous.
Tex. Gov't Code Anno. § 498.0045 (Vernon Supp. 1997).
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 EZELL has sustained at least three dismissals which fulfill the "three strikes" provision of the PLRA. Plaintiff has already been informed by orders in prior suits that he has accumulated three "strikes" under the PLRA and the facts alleged in his present submission do not bring this suit within the scope of the section (g) exception.
Cause No. 2:99-CV-0310 was dismissed for failure to state a claim by the United States District Court for the Northern District of Texas, Amarillo Division, on March 29, 2000, and plaintiff's subsequent appeal was unfiled on June 30, 2000; Cause No. 2:00-CV-0034 was dismissed for failure to state a claim by the United States District Court for the Northern District of Texas, Amarillo Division, on May 1, 2000, and plaintiff's subsequent appeal was unfiled on July 24, 2000; Cause No. 2:00-CV-0035 was dismissed for failure to state a claim and as barred for failure to exhaust administrative remedies by the United States District Court for the Northern District of Texas, Amarillo Division, on May 1, 2000, and plaintiff's subsequent appeal was unfiled on July 24, 2000; and Cause No. 2:00-CV-0061 was dismissed for frivolousness and for failure to state a claim by the United States District Court for the Northern District of Texas, Amarillo Division, on May 5, 2000, and plaintiff's subsequent appeal was unfiled on July 17, 2000. Additionally, plaintiff EZELL's Appeal No. 98-20131 was dismissed for frivolousness by the United States Court of Appeals for the Fifth Circuit on July 30, 1998; and Appeal No. 00-20158 was dismissed for frivolousness by the United States Court of Appeals for the Fifth Circuit on May 2, 2000. A sanction of $50 was imposed by the United States Court of Appeals for the Fifth Circuit in Appeal No. 00-20158. The sanction is still in effect.
Pursuant to Title 28, United States Code, 1915(g), the Magistrate Judge FINDS plaintiff JOSEPH SCOTT EZELL 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 28 U.S.C. § 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.
Because plaintiff has already sustained the "three strikes" and can no longer avail himself of the provisions for proceeding in forma pauperis, it is the RECOMMENDATION of the Magistrate Judge to the United States District Judge that plaintiff's request to proceed in forma pauperis be denied and that the instant cause be dismissed for failure to pay the requisite filing fee.
The United States District Clerk shall mail a copy of this Report and Recommendation to plaintiff and to each attorney of record by certified mail, return receipt requested. Any party may object to the proposed findings and to the Report and Recommendation within fourteen (14) days from the date of this Order. Rule 72, Federal Rules of Civil Procedure, and Rule 4(a)(1) of Miscellaneous Order No. 6, as authorized by Local Rule 3.1, Local Rules of the United States District Courts for the Northern District of Texas. Any such objections shall be in writing and shall specifically identify the portions of the findings, recommendation, or report to which objection is made, and set out fully the basis for each objection. Objecting parties shall file the written objections with the Clerk of the Court and serve a copy of such objections on the Magistrate Judge and on all other parties. The failure to timely file written objections to the proposed factual findings, legal conclusions, and the recommendation contained in this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court. Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
IT IS SO RECOMMENDED.
Permission to proceed in forma pauperis is granted temporarily and solely for the purpose of allowing a Report and Recommendation to issue and be considered by the United States District Judge.
Plaintiff is advised that if he pays the $150.00 filing fee within fourteen (14) days after the filing date hereof, this Report and Recommendation of dismissal will be withdrawn.
IT IS SO ORDERED.