Opinion
2:03-CV-0170
November 17, 2003
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Plaintiff R. WAYNE JOHNSON, 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 defendant and has submitted an application to proceed in forma pauperis.
On April 26, 1996, the Prison Litigation Reform Act of 1995 (PLRA) was signed into law, modifying the requirements for proceeding in forma pauperis in federal courts. Under the PLRA's "three strikes" provision, 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 18 U.S.C. § 1915(g).
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.
The Court notes that plaintiff has sustained at least three dismissals which fulfill the "three strikes" provision of the PLRA. Cause No. 4:95-CV-0064 was dismissed as frivolous by the United States District Court for the Southern District of Texas, Houston Division, on May 23, 1995; cause no. 4:95-CV-0068 was dismissed as frivolous by the United States District Court for the Southern District of Texas, Houston Division, on August 27, 1995; and cause no. 2:03-CV-0013 was dismissed as malicious and for failure to state a claim by the United States District Court for the Southern District of Texas, Corpus Christi Division, on April 15, 2003. Further, cause no. 02-CV-0656 was dismissed as frivolous by the United States District Court for the Western District of Texas, Austin Division, on October 11, 2002, and plaintiffs appeal no. 02-51232 was dismissed by the United States Court of Appeals for the Fifth Circuit as frivolous on April 24, 2003.
Pursuant to Title 28, United States Code, section 1915(g), the Court FINDS plaintiff R. WAYNE JOHNSON 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 the instant 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 (5th Cir. 1998).
CONCLUSION
For the reasons set forth above, plaintiffs 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.