Opinion
No. 3:04-CV-1437-K.
July 14, 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 county inmate pursuant to 42 U.S.C. § 1983. Plaintiff has neither paid the filing fee nor sought leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
Parties: Plaintiff is currently confined at the Dallas County Jail in Dallas, Texas. Defendants are Dallas County, Danny Chandler, District Attorney Bill Hill, and the Carrollton Police Department. The court has not issued process in this case.
Statement of Case: The complaint alleges Defendants have repeatedly conspired to violate Plaintiff's right to privacy, liberty, freedom of speech, freedom of press, due process of law, and right to the effective assistance of counsel. He further alleges defendants have conspired to impede his mail, to deny medical attention and access to the law library, and to have him assaulted while incarcerated at the Dallas County Jail.
Findings and Conclusions: 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 and the Court Clerk's records reflects that on February 28, 2003, the United States District Court for the Northern District of Texas, Dallas Division, dismissed one of Plaintiff's prior complaints as barred by three strikes. See Ruston v. Continental Motel, et al., 3:02cv2349-N (N.D. Tex.). The district court concluded that Plaintiff had filed at least three prior civil rights cases which were dismissed as frivolous or for failure to state a claim. The court further directed that "[a]s 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 filing fee or a showing of imminent danger of serious physical injury. Plaintiff did not appeal from the February 28, 2003 order and judgment.
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 in this case 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 bar Plaintiff from proceeding 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 barring Plaintiff from proceeding in forma pauperis pursuant to 28 U.S.C. § 1915(g), and directing that this action be dismissed pursuant to § 1915(g) 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.