Opinion
2:03-CV-0216
July 29, 2003
MEMORANDUM OPINION AND ORDER OF DISMISSAL
The instant cause was received by transfer from the United States District Court for the Northern District of Texas, Dallas Division, to the United States District Court for the Northern District of Texas, Amarillo Division, on July 17, 2003. Plaintiff ANTONIO RENAULD HENDERSON, acting pro se and while incarcerated as a prisoner in the Texas Department of Corrections, Institutional Division, has filed a pleading which the Clerk's office has treated as a suit pursuant to Title 42, United States Code, Section 1983 complaining against the above-referenced defendants. Plaintiff has neither paid the filing fee nor requested permission to proceed in forma pauperis.
In any event and as plaintiff was informed by the United States Court of Appeals for the Fifth Circuit in cause no. 99-11167, plaintiff has sustained more than three "strikes" under the Prison Litigation Reform Act of 1995 (PLRA) and is barred from further proceeding in forma pauperis in a civil suit or appeal, unless the case fits into the narrow exception enumerated in Title 28, United States Code, section 1915(g).
Plaintiff entitles his present pleading, "Petition for Life-Endangerment invoked and attached by Article 1.09, T.C.C.P., pursuant the Equal Protection Clauses and the Due Course of the Law of the Land Provision(s) of the Eighth, Thirteenth, and Fourteenth Amendment(s) of the U.S. Constitution." Plaintiff is clearly trying to invoke the statutory exception to the bar in effect against him.
Plaintiff pleads he had surgery to repair a lower-abdominal hernia in July of 2001. He says he also had a spinal injury and an injury to his left hip and shoulder which could not be helped by surgery and were not operated on. Before his surgery, plaintiff was given various medical restrictions such as no prolonged standing, no walking more than 900 ft., no excessive bending or reaching, no lifting more than 15 pounds, no climbing, a bottom bunk, bottom floor restriction, and a soft shoe restriction. Following his surgery, plaintiff was medically unassigned until 12/31/9999.
Plaintiff states that in February of 2003, the Nurse Practitioner at the Roach Unit discontinued the "prescribed medical plan of the physician(s) at Galveston Hospital" which was to extend through 12/31/9999. Further, plaintiff's classification has been changed and he has been subjected to disciplinary actions in which unidentified prison officials have refused to submit plaintiff's complete medical records, resulting, plaintiff says, in a deprivation of goodtime credits and disciplinary segregation. Also, plaintiff has been given a top row, top bunk housing assignment which has caused him more severe pain and numbness in the spinal column and pain and swelling in the groin area, with discomfort upon urination.
Plaintiff's argument that the changes in his health care plan place him in imminent danger of serious physical seems to rest primarily on the fact that his restrictions were initially notated as extending until 12/31/9999; however, this is merely a TDCJ-ID notation, not the opinion of plaintiff's treating physician, who may or may not have felt plaintiff to be permanently restricted. Moreover, plaintiff's treatment plan can be changed by a subsequent physician without violating the constitutuional prohibition against cruel and unusual punishment. Plaintiff states his plan was changed by a nurse practitioner; however, nurse practitioners are required to practice under the supervision of a physician, and plaintiff does not allege the absence of such supervision. While plaintiff also pleads that the changes have resulted in pain and swelling in his back and groin, as well as pain on urination, plaintiff does not plead facts which show this indicates imminent danger of serious physical injury.
The Fifth Circuit has examined the PLRA and construed it to apply to all cases pending at the time of its passage, as well as those filed afterwards. Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996). 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." Id.
Pursuant to Title 28, United States Code, section 1915(g), the District Judge FINDS plaintiff ANTONIO RENAULD HENDERSON may not proceed in forma pauperis in this or any further new civil 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.
CONCLUSION
Plaintiff has previously utilized his three "strikes" under the PLRA and is barred from proceeding in forma pauperis in any new civil proceeding filed in federal court while a prisoner unless he first pays the filing fee. Further, by the instant complaint, plaintiff has not alleged facts falling within the exception defined by Title 28, United States Code, section 1915(g).
For the reasons set forth above, the instant cause is DISMISSED WITHOUT PREJUDICE to refiling with prepayment of the filing fee.
LET JUDGMENT BE ENTERED ACCORDINGLY.
All pending motions are DENIED.
The Clerk shall send a copy of this order to plaintiff and to the Pro Se Clerk at the U.S. District Court for the Eastern District of Texas, Tyler Division.
IT IS SO ORDERED.