Opinion
Civil Action 9:23cv226
12-15-2023
NATHANIEL JONES, III v. DONALD MUNIZ, ET AL.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Zack Hawthorn, United States Magistrate Judge.
Nathaniel Jones, III, an inmate confined within the Texas Department of Criminal Justice, Correctional Institutions Division, proceeding pro se, filed this civil rights lawsuit. Plaintiff has filed a motion seeking to proceed with this matter on an in forma pauperis basis.
This matter was referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636 and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to the United States Magistrate Judge for findings of fact, conclusions of law, and recommendations for the disposition of the case.
Discussion
Title 28 U.S.C. § 1915(g) prohibits prisoners from repeatedly filing frivolous or malicious complaints on an in forma pauperis basis, as well as complaints that fail to state a claim upon which relief may be granted. Section 1915(g) provides as follows:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action [in forma pauperis] . . . if the prisoner has, on three or more occasions . . . brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious or fails to state a claim upon which relief may be granted, unless the person is under imminent danger of serious physical injury.
Prior to the date on which he filed this lawsuit, at least four lawsuits filed by plaintiff were dismissed as frivolous, malicious or for failure to state claim upon which relief may be granted. As a result, Section 1915(g) is applicable.
Jones v. Harwell, No. 6:97cv83 (W.D. Tex. May 16, 1997) (dismissed as frivolous); Jones v. Harwell, No. 6:97cv176 (W.D. Tex. Nov. 26, 1997) (dismissed as frivolous); Jones v. Tombone, No. 3:98cv85 (N.D. Tex. Feb. 12, 1998) (dismissed as frivolous); Jones v. Thomas, No. 1:00cv244 (E.D. Tex. April 19, 2000) (dismissed as malicious).
Plaintiff alleges he was denied access to religious services. His allegations do not demonstrate he was in imminent danger of serious physical injury on the date he filed this lawsuit. Section 1915(g) therefore bars plaintiff from proceeding with this lawsuit on an in forma pauperis basis. This lawsuit should therefore be dismissed.
Recommendation
This lawsuit should be dismissed without prejudice pursuant to 28 U.S.C. § 1915(g).
Objections
Objections must be (1) specific, (2) in writing, and (3) filed within 14 days after receiving a copy of this report. 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 6(A), 6(B) AND 72(B).
A party's failure to object bars that party from (1) entitlement to de novo review by a district judge of proposed findings and recommendations, Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988), and (2) appellate review, except on grounds of plain error, of unobjected-to factual findings and legal conclusions accepted by the district court, Douglass v. United Serv. Auto. Ass'n., 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc).