Opinion
No. 3:04-CV-1204-N.
July 13, 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 District Court in implementation thereof, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type of Case: This is a civil rights complaint brought by a state inmate pursuant to 42 U.S.C. § 1983.
Parties: Plaintiff is currently confined at the Hutchins State Jail of the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID) in Dallas, Texas. Defendants are TDCJ-CID Director Douglas Dretke, Inmate Valentine, and KSC Temporary Agency. The court has not issued process in this case.
Statement of Case: The complaint seeks compensatory damages under the First and Eighth Amendments because Plaintiff was struck by a fellow inmate and was denied participation in the chapel's choir and in the group of chapel volunteers. The complaint also seeks compensation from KSC Temporary Agency for work performed prior to his incarceration.
Findings and Conclusions: Contemporaneously with the filing of the complaint, Plaintiff submitted a motion for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. The Prison Litigation Reform Act (PLRA), enacted into law on April 26, 1996, amended 28 U.S.C. § 1915 as it relates to civil actions that prisoners file in federal court. Among the changes effected by the PLRA was the inclusion of 28 U.S.C. § 1915(g), also known as the "three-strike" provision. Section 1915(g) precludes a prisoner from bringing a civil action in forma pauperis if on three or more prior occasions, while confined as a prisoner, he filed civil actions or appeals in federal court which were dismissed, either by a district court or appellate court, as being frivolous, malicious, or for failing to state a claim.
A review of the Prisoner Litigation Index reflects that Plaintiff has filed at least thirty civil rights actions during the last fourteen years. The United States District Court for the Southern District of Texas, Houston Division, has dismissed at least two of Plaintiff's prior complaints as barred by three strikes. See Roberson v. Brooks, 4:97cv3333 or H-97-3333 (S.D. Tex., Houston Div., Dec. 19, 1997) (Attachment I);Roberson v. Thaler, 4:97cv2997 or H-97-2997 (S.D. Tex., Houston Div., Oct. 7, 1997) (Attachment II). The district courts concluded that, while Plaintiff was incarcerated as a prisoner, he had filed at least three prior civil rights cases, one in the Southern District and two in the Eastern District, which were dismissed as frivolous or for failure to state a claim. See Roberson v. Goad, No. 4:93cv2041 (S.D. Tex., Houston Div.);Roberson v. Lynaugh, No. 9:90cv033 (E.D. Tex.); and Roberson v. Lynaugh, 9:90cv064 (E.D. Tex.).
The United States District Court for the Southern District of Texas has also barred Plaintiff from filing any more pro se, in forma pauperis civil rights actions unless he has specific permission to file from a judicial officer. See Roberson v. T.D.C.J., et al., No. 4:96cv2588 or H:96-2588 (S.D. Tex., Houston Div.) (attachment III); see also Roberson v. Vernon, et al., No. 3:99-cv-2359-D (N.D. Tex., Dallas Div.) (unfiling civil rights complaint because Plaintiff had not sought leave to file as set out in No. 4:96cv2588) (magistrate judge's recommendation filed on May 26, 2000, and adopted on June 20, 2000).
Because Plaintiff has accumulated at least three "strikes," § 1915(g) precludes him from proceeding in this action in forma pauperis unless he alleges a claim of "imminent danger of serious physical injury" at the time he files the complaint.Banos v. O'Guin, 144 F.3d 883, 884 (5th Cir. 1998). The complaint presents no claim that Plaintiff is in danger of physical injury. See Carson v. Johnson, 112 F.3d 818, 822-823 (5th Cir. 1997); Adepegba, 103 F.3d at 388. See also Banos v. O'Guin, 144 F.3d 883 (5th Cir. 1998).
Because the complaint does not fall within the exception to the "three-strike rule" set out in § 1915(g), the District Court should deny Plaintiff leave to proceed in forma pauperis, and give him an opportunity to pay the full filing fee of $150.00 or his action will be dismissed as barred by three strikes. See Adepegba, 103 F.3d at 388.
RECOMMENDATION:
For the foregoing reasons, it is recommended that the District Court enter an order denying Plaintiff leave to proceed in forma pauperis pursuant to the three-strike provision of 28 U.S.C. § 1915(g), and directing that this action be dismissed as barred by three strikes unless Plaintiff tenders the $150.00 filing fee within 30 days of the District Court's order.
A copy of this recommendation will be mailed to Plaintiff.
ATTACHMENT I
odismpr. IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISIONEDDIE JAMES ROBERSON, $ (TDCJ-ID #499785) $ Plaintiff, $ $ v. $ Civil Action No. H-97-3333 $ WILLIAM BROOKS, $ Defendant. $
MEMORANDUM ON DISMISSAL
Plaintiff Roberson, an inmate of the Texas Department of Criminal Justice-Institutional Division (TDCJ-ID), filed this civil rights complaint under 42 U.S.C. § 1983. Roberson proceeds pro se and as a pauper under 28 U.S.C. § 1915.
Roberson has filed at least twenty-seven other lawsuits in this court. He has also filed at least nine lawsuits in the United States District Court for the Eastern District of Texas and at least two lawsuits in the United States District Court for the Western District of Texas. Three of his lawsuits were dismissed as frivolous before Roberson filed this case; one in this district and two in the Eastern District of Texas. See Roberson v. Goad, Civil Action No. H-93-2041, Roberson v. Lynaugh, Civil Action No. 9:90CV33, and Roberson v. Lynaugh, Civil Action No. 9:90CV64. The Clerk's records show that when each of these three cases was filed, Roberson was incarcerated in the TDCJ-ID or a detention facility.
A prisoner is not allowed to bring a civil action in forma pauperis in federal court if, on three or more prior occasions, while incarcerated, he brought an action which was dismissed as frivolous or for failure to state a claim upon which relief may be granted, unless he is under imminent danger of serious physical injury. 28 U.S.C. § 1915(g). Roberson's pleadings in this case do not show such danger. The instant action should be dismissed.
It is, therefore, ORDERED that this complaint filed by Eddie James Roberson (TDCJ-ID #499785) is DISMISSED under 28 U.S.C. § 1915(g). All pending motions are DENIED. This action is dismissed without prejudice to reinstatement by the court, if Roberson submits payment of the full filing fee within thirty days of entry of this order.
The Clerk will send a copy to the parties and to Amber Rives, Texas Board of Criminal Justice, P.O. Box 13084, Capitol Station, Austin, Texas 78711; Fax: 512-475-3251.
SIGNED at Houston, Texas, on December 18, 1997.
LEE H. ROSENTHAL UNITED STATES DISTRICT JUDGE
ATTACHMENT II
odismpr. IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISIONEDDIE JAMES ROBERSON, * Plaintiff, * * v. * CIVIL ACTION NO. H-97-2997 * WARDEN THALER, * Defendant. *
ORDER OF DISMISSAL
Plaintiff filed this civil rights complaint under 42 U.S.C. § 1983. He is proceeding as a pauper under 28 U.S.C. § 1915. Plaintiff is incarcerated in the Texas Department of Criminal Justice-Institutional Division (TDCJ-ID).
Plaintiff has filed at least twenty-six (26) other lawsuits in this court. He has also filed at least nine (9) lawsuits in the U.S. District Court for the Eastern District of Texas and at least two (2) lawsuits in the U.S. District Court for the Western District of Texas. Three of his lawsuits were dismissed as frivolous before Plaintiff filed this case; one in this district and two in the Eastern District of Texas. See Roberson v. Goad, Civil Action No. H-93-2041, Roberson v. Lynaugh, Civil Action No. 9:90CV33, and Roberson v. Lynaugh, Civil Action No. 9:90CV64. The Clerk's records show that when each of these three cases was filed, Plaintiff was incarcerated in the TDCJ-ID or a detention facility.
Under 28 U.S.C. § 1915(g), a prisoner is not allowed to bring a civil action in forma pauperis in federal court if, on three or more prior occasions, while incarcerated, he brought an action which was dismissed as frivolous or for failure to state a claim upon which relief may be granted, unless he is under imminent danger of serious physical injury. Plaintiff's pleadings in this case do not show such danger.
It is, therefore, ORDERED that this complaint filed by Eddie James Roberson, TDCJ-ID No. 499785 is DISMISSED under 28 U.S.C. § 1915(g). All pending motions are DENIED. This action is dismissed without prejudice to reinstatement by the court, if Plaintiff submits payment of the full filing fee without thirty (30) days of entry of this order.
The Clerk will send a copy to the parties and to Amber Rives, Texas Board of Criminal Justice, P.O. Box 13084, Capitol Station, Austin, Texas 78711; Fax: 512-475-3251.
Signed at Houston, Texas, on October 6, 1997.
UNITED STATES DISTRICT JUDGE
ATTACHMENT III
ordndmpr.
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION
EDDIE JAMES ROBERSON, $ TDCJ-ID #499785, $ Plaintiff, $ $ v. $ CIVIL ACTION H-96-2588 $ T.D.C.J., et al., $ Defendants. $
ORDER OF DISMISSAL
Plaintiff Roberson is a prison inmate who proceeds pro se and in forma pauperis. He filed this complaint on July 22, 1996 seeking damages for alleged violations of his constitutional rights that occurred on June 6, 1996 at the prison's Ellis I Unit. Roberson says that he was confined alone in a cell in prehearing detention when another inmate down the hallway began to cause a disturbance. Roberson claims prison guards sprayed tear gas throughout the prehearing detention unit that "knocked [him] out" and caused mental anguish. See Instrument #1 at p. 3. Roberson's grievances, which he attached to his original complaint, elicited the response that the guards had actually used pepper spray rather than tear gas, and that the spray was used only in one inmate's cell.
The court, in accordance with the Prison Litigation Reform Act, granted Roberson's application to proceed in forma pauperis and assessed an initial partial filing fee of $1.66. Roberson has neither sent the fee to the court nor, apparently, executed documents to authorize prison authorities to withdraw the money from his inmate trust account. He did file an instrument styled "Motion for Partial Filing Fee", essentially objecting to the assessment of a filing fee when he is indigent. However, the PLRA is clear; indigent prisoners now are allowed to pay the filing fee in installments rather than being exempted from paying altogether. See 28 U.S.C. § 1915(b)(1), (2). Therefore, the court will enter a second order on collection of the filing fee.
The court also directed Roberson to show cause why this complaint should not be summarily dismissed, since he has filed nineteen pro se, in forma pauperis civil rights complaints in this court alone, plus several such cases in the United States District Courts for the Eastern and Western Districts of Texas. The statute governing such cases filed by prisoners, 28 U.S.C. § 1915, empowers the court to dismiss the cases and to issue sanctions when a prisoner has repeatedly abused the judicial system by having three or more civil actions or appeals dismissed as frivolous, malicious, or failing to state a claim upon which relief may be granted. 28 U.S.C. § 1915(g). Court records indicate that two of Roberson's cases in the Eastern District were dismissed on this basis, and three of his cases in this court were dismissed under § 1915. See, e.g., Order of Dismissal in civil action H-97-2997, entered October 7, 1997.
In the Eastern District: 9:90CV33; 9:90CV64. In the Southern District: H-93-2041, dismissed 9/15/93; H-97-2997, dismissed 10/7/97; H-97-3333, dismissed 12/18/97.
Roberson has not responded to the court's show cause order; it was entered on April 22, 1997 and gave him until May 30, 1997 to respond. Therefore, this complaint will be dismissed for want of prosecution. Generally, a dismissal for want of prosecution operates without prejudice, but the court finds that Roberson has made lavish use of this provision of court rules, as well. In this district alone, eleven of his cases have been dismissed for want of prosecution. Such frequency indicates a pattern of filing civil rights claims, which once were free of cost, with no real intention of pursuing them to conclusion.
H-94-1241, dismissed 8/23/94; H-94-3639, dismissed 11/30/95; H-95-612, dismissed 7/11/95; H-95-1505, dismissed 7/21/95; H-95-1311, dismissed 8/25/95; H-95-66, dismissed 8/29/95; H-95-4481, dismissed 11/16/95; H-95-5416, dismissed 2/14/96; H-96-1613, dismissed 9/11/96; H-96-2155, dismissed 10/2/96; and H-96-898, dismissed 11/5/96.
It is, therefore, ORDERED as follows:
1. Plaintiff's Motion for Partial Filing Fee (Instrument #6) is DENIED.
2. This complaint is DISMISSED under Fed.R.Civ.P. 41(b) for want of prosecution.
3. The Clerk is directed to refuse to accept any more pro se, in forma pauperis civil actions from this plaintiff unless he has specific permission to file from a judicial officer.
The Clerk will provide a copy to the parties and to Amber Rives, Texas Board of Criminal Justice, P.O. Box 13084, Austin, TX 78711, fax number 512-475-3251.
Signed on March 26, 1998.
JOHN D. RAINEY UNITED STATES DISTRICT JUDGE