Opinion
CIVIL ACTION NO. 4:17-CV-1558
05-23-2017
R WAYNE JOHNSON, Plaintiff, v. U S POSTAL SERVICE, Defendant.
MEMORANDUM AND ORDER
R. Wayne Johnson, an inmate incarcerated at the Clements Unit of the Texas Department of Criminal Justice, Correctional Institutions Division, has filed a civil rights complaint. Johnson has not paid the filing fee. This action will be dismissed pursuant to the provisions of 28 U.S.C. § 1915(g).
Barring a show of imminent danger, under the Prison Litigation Reform Act of 1995, a prisoner may not file an action without prepayment of the filing fee if he has, on three or more prior occasions, filed a prisoner action in federal district court or an appeal in a federal court of appeals which was dismissed as frivolous or malicious. 28 U.S.C. § 1915(g); Adepegba v. Hammons, 103 F.3d 383, 385 (5th Cir. 1996). Johnson accumulated at least 14 such dismissals before filing the pending complaint, and is no longer allowed to proceed in forma pauperis pursuant to the provisions of section 1915(g). See, e.g., Johnson v. Texas Tech, No. 5:16-cv-276 (N.D. Tex. Dec. 28, 2016); Johnson v. United States Marine Corps, No. 2:13-cv-66 (N.D. Tex. July 15, 2013); Johnson v. Thaler, No. 2:10-cv-41 ( N.D. Tex. Feb. 27, 2012); Johnson v. Thaler, No. 2:10-cv-006 (N.D. Tex. Apr. 6, 2011); Johnson v. Sloan, No. 2:09-cv-169 (N.D. Tex. Oct, 26, 2009); Johnson and Gutierrez v. Livingston, No. 4:05-cv-2651 (S.D. Tex. Aug. 5, 2005); Johnson v. Dretke, No. 4:05-cv-1433 (S.D. Tex. Apr. 28, 2005); Johnson v. Cockrell, No. 2:03-cv-170 (N.D. Tex. Nov. 17, 2003); Johnson v. McCaul, No. 3:03-cv-13 (S.D. Tex. Apr. 14, 2003); Johnson v. Whatley, No. 2:02-cv-107 (S.D. Tex. April 5, 2002). Johnson's allegations do not plead any facts showing that he is in any immediate danger which would warrant waiver of the fee requirement. See Choyce v. Dominguez, 160 F.3d 1068, 1071 (5th Cir. 1998); Banos v. O'Guin, 144 F.3d 883, 884 (5th Cir. 1998).
In light of the pleadings and his litigation history, Johnson has failed to show that he is eligible to proceed as a pauper and has also failed to assert a claim that has any legal basis. Consequently, this action should be dismissed pursuant to 28 U.S.C. § 1915(g) and 28 U.S.C. § 1915(e). This dismissal shall count as a strike under section 1915(g).
The court ORDERS that the Complaint (Docket Entry No. 1), filed by TDCJ-CID inmate R. Wayne Johnson, TDCJ-CID No. 00282756 is DISMISSED. 28 U.S.C. § 1915(g); 28 U.S.C. § 1915(e).
The Clerk is directed to provide a copy of this Memorandum Opinion and Order to the parties, to the TDCJ - Office of the General Counsel, P.O. Box 13084, Austin, Texas 78711, Fax Number (512) 936-2159, and to the three strikes coordinator for this district, Three_Strikes@txs.uscourts.gov.
SIGNED on this 23rd day of May, 2017.
/s/_________
Kenneth M. Hoyt
United States District Judge