Opinion
2:04-CV-0345.
May 13, 2005
REPORT AND RECOMMENDATION
Plaintiff HENNESSEY HUNT, acting pro se and while a prisoner incarcerated in the Texas Department of Criminal Justice, Correctional Institutions Division, has filed suit pursuant to Title 42, United States Code, Section 1983 complaining against the above-named defendants and requesting leave to proceed in forma pauperis.
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 HUNT has sustained at least three dismissals which fulfill the "three strikes" provision of the PLRA. The facts alleged in his present submission do not bring this suit within the scope of the section (g) exception. Moreover, review of plaintiff's disclosure reveals a balance of $1,130.52 at the time of filing, more than sufficient to disqualify plaintiff from pauper status.
Cause No. 2:97-CV-0338; 2:02-CV-0019; and 5:97-CV-0379, all in the Northern District of Texas.
Pursuant to Title 28, United States Code, 1915(g), the Magistrate Judge FINDS plaintiff HENNESSEY HUNT 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 and plaintiff's financial disclosure reveals he does not qualify for pauper status.
For all of the reasons set forth above, 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.
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.