Opinion
No. 3:03-CV-2355-N
January 8, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636 (b), and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
Plaintiff is an inmate currently incarcerated in the state prison system. In October 2003, he filed the instant civil action against various defendants and moved to proceed in forma pauperis. The Court found that the motion to proceed in forma pauperis should be denied based on the three-strikes provision of 28 U.S.C. § 1915(g). (See Order of Nov. 25, 2003, at 2-3.) However, the Court deemed it appropriate to grant plaintiff thirty days to pay the full filing fee of $150.00 to the Clerk of the Court before recommending that in forma pauperis be denied. ( Id.) The Court also admonished plaintiff that failure to pay the filing fee within the time allotted would result in a recommendation that in forma pauperis be denied and that this action be dismissed without prejudice for failure to comply with a court order under Fed.R.Civ.P. 41(b). ( Id.) To date, plaintiff has not paid the requisite filing fee.
II. THREE STRIKES
As a prisoner seeking to proceed in forma pauperis, plaintiffs action is subject to review under the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915. One of the major changes promulgated by the PLRA is the "three-strikes" provision set forth in § 1915(g). That provision states:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section, if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, 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 prisoner is under imminent danger of serious physical injury.
In short, inmates may not proceed without the prepayment of fees, if they have previously brought three or more civil actions or appeals in federal court that were dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted, unless they are in imminent danger of serious physical injury.
A review of relevant court records indicates that plaintiffs current filing falls under the PLRA "three-strikes" provision. On September 16 and 29, 1998, this Court summarily dismissed two of plaintiffs previous actions as frivolous. See McCray v. Board of Pardons Paroles, No. 3:98-CV-1494-H (N.D. Tex.) (Judgment dated Sept. 16, 1998); McCray v. Whittley, No. 3:98-CV-1935-G (N.D. Tex.) (Judgment dated Sept. 29, 1998). On November 9, 1998, the Galveston Division of the United States District Court for the Southern District of Texas dismissed two other civil actions as frivolous. See McCray v. Becker, No. G-98-347 (S.D. Tex.) (Judgment dated Nov. 9, 1998); McCray v. Becker, No. G-98-377 (S.D. Tex.) (Judgment dated Nov. 9, 1998). In addition, on January 24, 2000, the Houston Division of the United States District Court for the Southern District of Texas dismissed as frivolous another civil action filed by plaintiff. See McCray v. Bureau of Classification, No. H-99-4512 (S.D. Tex.) (Order of Dismissal dated Jan. 24, 2000).
Due to these five "strikes" plaintiff may not proceed with his current action without the prepayment of fees under 28 U.S.C. § 1915 (g) unless it appears that he is subject to imminent danger of serious physical injury. Plaintiff has made no allegation that he is in any imminent danger. Consequently, he must prepay the requisite filing fee before this case can proceed.
III. INVOLUNTARY DISMISSAL
Rule 41(b) of the Federal Rules of Civil Procedure permits a court to dismiss sua sponte an action for failure to prosecute or follow orders of the court. McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988). This authority flows from a court's inherent power to control its docket, prevent undue delays in the disposition of pending cases, and avoid congested court calendars. Link v. Wabash R.R. Co., 370 U.S. 626, 629-31 (1962). Plaintiff has failed to comply with the Order of November 25, 2003, that he pay the filing fee within thirty days. Accordingly, the Court should dismiss his complaint without prejudice for failure to follow an order of the Court.
IV. RECOMMENDATION
For the foregoing reasons, it is recommended that the Court deny plaintiffs motion to proceed in forma pauperis and dismiss his complaint without prejudice for failure to comply with an order of the Court pursuant to Fed.R.Civ.P. 41(b). As long as plaintiff remains a prisoner within the meaning of 28 U.S.C. § 1915 (g), he may not proceed with the instant action or any other civil action without prepayment of the $150 filing fee or a showing of imminent danger of serious physical injury.