Opinion
2:04-CV-0103.
April 30, 2004
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Plaintiff RICHARD GERMAN ROBINSON, acting pro se and while a prisoner incarcerated in the Texas Department of Criminal Justice, Correctional Institutions Division, has filed suit pursuant to Title 42, United States Code, section 1983 complaining against the above-named defendants and has submitted an application to proceed in forma pauperis.
Under the "three strikes" provision of the Prison Litigation Reform Act, a prisoner who has had three prior civil 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 Title 28, United States Code, section 1915(g). 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." Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996).
The Court notes that plaintiff ROBINSON has sustained at least three dismissals which fulfill the "three strikes" provision of the PLRA. Cause No. 2:00-CV-0134 was dismissed by the United States District Court for the Northern District of Texas, Amarillo Division, on September 26, 2001, as frivolous, and plaintiff's subsequent appeal was dismissed as frivolous on March 14, 2002. Cause No. 2:01-CV-0237 was dismissed for frivolousness by the United States District Court for the Northern District of Texas, Amarillo Division, on November 16, 2001, and plaintiff's subsequent appeal was dismissed as frivolous on July 10, 2002.
Pursuant to Title 28, United States Code, section 1915(g), the Court FINDS plaintiff RICHARD GERMAN ROBINSON 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 this 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, plaintiff's 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.