Opinion
3:16-CV-0066-D-BK
01-19-2016
LARRY LYNN ROBINSON, #1955575, Plaintiff, v. WILLIAM STEPHENS, et al., Defendants.
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636(b) and Special Order 3, this case was automatically referred to the United States Magistrate Judge. Plaintiff, a state inmate, filed a pro se civil rights complaint along with a motion for leave to proceed in forma pauperis. For the reasons that follow, it is recommended that this case be summarily dismissed as barred by three strikes.
I. ANALYSIS
The "three-strike" provision of the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 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 that were dismissed, either by a district court or appellate court, as being frivolous, malicious, or for failing to state a claim. Jackson v. Johnson, 475 F.3d 261, 265 (5th Cir. 2007).
This Court previously found Plaintiff was barred by three strikes. See Robinson v. Valdez, et al., No. 3:14-CV-2611-L-BK, 2014 WL 5472444 (N.D. Tex. Oct. 29, 2014) (accepting recommendation of the magistrate judge, collecting prior dismissals for frivolousness and three-strike bar, and finding Plaintiff was barred by three strikes). Having accumulated three "strikes," section 1915(g) precludes Plaintiff from proceeding in this action in forma pauperis unless he alleges he is in "imminent danger of serious physical injury" at the time of filing the complaint. See Banos v. O'Guin, 144 F.3d 883, 884 (5th Cir. 1998) (per curiam). Even when liberally construed, the complaint presents no such claim. See Carson v. Johnson, 112 F.3d 818, 822-823 (5th Cir. 1997). Indeed, the complaint only broadly alleges that "Plaintiff's 'life is in imminent danger' here on this Unit as well as [in] T.D.C.J. as a whole," purportedly as a result of disciplinary case No. 2016004246. Doc. 2 at 8; see also Doc. 2 at 3. That is insufficient.
Plaintiff is thus barred from proceeding in forma pauperis under section 1915(g).
II. RECOMMENDATION
For the foregoing reasons, it is recommended that Plaintiff's motion to proceed in forma pauperis [Doc. 3] be DENIED, and that this action be DISMISSED as barred by the three-strike provision of 28 U.S.C. § 1915(g). Such dismissal is with prejudice to the refiling of an in forma pauperis lawsuit raising the same claims as herein presented, but without prejudice to the refiling of this lawsuit with full payment of the $400.00 filing fee.
A $50 administrative fee will be assessed in addition to the $350 filing fee, resulting in a total filing fee of $400 for a civil action in which the plaintiff has not sought or been granted leave to proceed in forma pauperis. See District Court Miscellaneous Fee Schedule. Where a prisoner plaintiff has been granted leave to proceed in forma pauperis, only the $350 filing fee will be deducted from the prisoner's account, and the $50 administrative fee will not be deducted. Id. --------
SIGNED January 19, 2016.
/s/_________
RENÉE HARRIS TOLIVER
UNITED STATES MAGISTRATE JUDGE
INSTRUCTIONS FOR SERVICE AND
NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of this report and recommendation will be served on all parties in the manner provided by law. Any party who objects to any part of this report and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).
/s/_________
RENÉE HARRIS TOLIVER
UNITED STATES MAGISTRATE JUDGE