Opinion
3:21-cv-1814-D-BN
08-12-2021
DEMARCUS KENARD JOE, TDCJ No. 1047716, Plaintiff, v. MARIO KENI CASH, Defendants.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
DAVID L. HORAN, UNITED STATES MAGISTRATE JUDGE
Plaintiff Demarcus Kenard Joe, a Texas prisoner, using the form for actions under 42 U.S.C. § 1983, filed a pro se civil complaint against an individual who Joe identifies as an “expert witness.” Dkt. No. 3.
Senior United States District Judge Sidney A. Fitzwater referred Joe's action to the undersigned United States magistrate judge for screening under 28 U.S.C. § 636(b) and a standing order of reference.
And the undersigned enters these findings of fact, conclusions of law, and recommendation that the Court should summarily dismiss this action without prejudice under 28 U.S.C. § 1915(g) unless, within the time for filing objections to this recommendation or by some other deadline established by the Court, Joe pays the full filing fee of $400.00.
Prisoners may not proceed in forma pauperis (IFP) if, while incarcerated or detained in any facility, they have filed three or more civil actions or appeals in federal court that were dismissed as frivolous, malicious, or for failure to state a claim (referred to as “strikes”). See 28 U.S.C. § 1915(g).
Joe is subject to this three-strikes bar. See Joe v. Richardson, No. 3:18-cv-1366-N-BN, 2018 WL 5259656 (N.D. Tex. Sept. 17, 2018) (recounting Joe's accumulation of strikes and dismissing case as barred by Section 1915(g)), rec. accepted, 2018 WL 5258576 (N.D. Tex. Oct. 22, 2018); Joe v. White, No. 7:19-cv-92-M-BP (N.D. Tex. Oct. 9, 2019) (same); Joe v. Hegar, No. 3:20-cv-718-L-BN, 2020 WL 1942140 (N.D. Tex. Mar. 27, 2020) (same), rec. accepted, 2020 WL 1940283 (N.D. Tex. Apr. 21, 2020).
The only exception to this bar is when the prisoner is “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).
But, in order to meet the “imminent danger” exception, “the ‘threat or prison condition [must be] real and proximate.'” Valdez v. Bush, No. 3:08-cv-1481-N, 2008 WL 4710808, at *1 (N.D. Tex. Oct. 24, 2008) (quoting Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003)). “Allegations of past harm do not suffice - the harm must be imminent or occurring at the time the complaint is filed.” Id.; see also McGrew v. La. State Penitentiary Mental Health Dep't, 459 Fed.Appx. 370, 370 (5th Cir. 2012) (per curiam) (“The determination whether a prisoner is under ‘imminent danger' must be made at the time the prisoner seeks to file his suit in district court, when he files his notice of appeal, or when he moves for IFP status.” (citing Baños v. O'Guin, 144 F.3d 883, 884-85 (5th Cir. 1998))).
A prisoner must also “allege specific facts” to support the imminent-danger exception. Valdez, 2008 WL 4710808, at *1. “General allegations that are not grounded in specific facts which indicate that serious physical injury is imminent are not sufficient to invoke the exception to § 1915(g).” Id. (quoting Niebla v. Walton Corr. Inst., No. 3:06-cv-275-LAC-EMT, 2006 WL 2051307, at *2 (N.D. Fla. July 20, 2006)).
Thus, the “specific allegations” must reflect “ongoing serious physical injury” or “a pattern of misconduct evidencing the likelihood of imminent serious physical injury.” Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). For example, as to allegedly inadequate medical care, use of “the past tense when describing” symptoms - which should be corroborated by medical records or grievances - is not enough to allege imminent danger. Stone v. Jones, 459 Fed.Appx. 442, 2012 WL 278658, at *1 (5th Cir. Jan. 31, 2012) (per curiam).
And there must be a nexus between the claims made and the imminent danger alleged. See Stine v. Fed. Bureau of Prisons Designation & Sentence Computation Unit, No. 3:13-cv-4253-B, 2013 WL 6640391, at *2 (N.D. Tex. Dec. 17, 2013) (citations omitted), aff'd, 571 Fed.Appx. 352 (5th Cir. 2014) (per curiam).
As Joe's current civil action falls under the three-strikes provision, he may not proceed without the prepayment of fees unless he shows that he is subject to imminent danger of serious physical injury. But his complaint lacks substantive factual allegations to show that he currently is in imminent danger of serious physical injury as to overcome Section 1915(g).
The Court should therefore bar Jones from proceeding IFP. See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996).
And, insofar as Joe seeks release from incarceration, see Dkt. No. 3 at 4, he should pursue habeas relief, see Poree v. Collins, 866 F.3d 235, 243 (5th Cir. 2017) (Generally, “challenges to the fact or duration of confinement are properly brought under habeas, while challenges to the conditions of confinement are properly brought under § 1983.” (footnotes omitted)); Serio v. Members of La. St. Bd. of Pardons, 821 F.2d 1112, 1119 (5th Cir. 1987) (“In instances in which a [complaint] combines claims that should be asserted in habeas with claims that properly may be pursued as an initial matter under [42 U.S.C.] § 1983, and the claims can be separated, federal courts should do so, entertaining the § 1983 claims.”).
Recommendation
The Court should summarily dismiss this action without prejudice under 28 U.S.C. § 1915(g) unless, within the time for filing objections to this recommendation or by some other deadline established by the Court, Plaintiff Demarcus Kenard Joe pays the full filing fee of $400.00.
A copy of these findings, conclusions, and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of these findings, conclusions, and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's findings, conclusions, and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).