Jeffery v. Eisen

Full title: HORACE JEFFERY, PRO SE, Plaintiff, v. J. GRANTA, L. EISEN, and C. WILSON…

Court: United States District Court, N.D. Texas, Amarillo Division

Date published: Jul 13, 2004

2:04-CV-0168 (N.D. Tex. Jul. 13, 2004)

Opinion

2:04-CV-0168.

July 13, 2004

MEMORANDUM OPINION AND ORDER OF DISMISSAL

MARY ROBINSON, District Judge

Plaintiff HORACE JEFFERY, 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 has submitted an application to proceed in forma pauperis.

Under the "three strikes" provision of the Prison Litigation Reform Act, a prisoner who has had three prior civil 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 (5^th Cir. 1996).

The Court notes that plaintiff JEFFERY has sustained at least three dismissals which fulfill the "three strikes" provision of the PLRA. Cause No. 2:95-CV-0022 was dismissed by the United States District Court for the Northern District of Texas, Amarillo Division, on June 17, 1996, as frivolous, plaintiff's subsequent appeal was dismissed on October 1, 1997, and a denial of petition for writ of certiorari was received from the United States Supreme Court on October 16, 1998; Cause No. 7:98-CV-0051 was dismissed for frivolousness by the United States District Court for the Northern District of Texas, Wichita Falls Division, on April 17, 1998, and plaintiff's subsequent appeal was dismissed as frivolous on October 26, 1998.

Pursuant to Title 28, United States Code, section 1915(g), the Court FINDS plaintiff HORACE JEFFERY 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 Title 28, United States Code, section 1915 (g). Even if this cause were accompanied by the necessary motion, the grounds presented in the instant suit do not fall within the statutory exception. Plaintiff has alleged no fact fulfilling the statutory exception as construed by the Fifth Circuit. Banos v. O'Guin, 144 F.3d 883, 885 (5^th Cir. 1998).

CONCLUSION

For the reasons set forth above, plaintiff's motion to proceed in forma pauperis is DENIED.

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.

IT IS SO ORDERED.