Opinion
No. 3-04-CV-1462-D.
January 3, 2005
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States magistrate judge for initial screening pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The findings and recommendation of the magistrate judge are as follow:
I.
This is a putative civil rights class action brought by six current or former inmates at the Dallas County Jail. On July 7, 2004, plaintiffs tendered a one-page handwritten complaint accusing defendants of conspiring to, inter alia: (1) deprive them of medical care; (2) expose them to assaults, battery, slander, and abuse of process; (3) retaliate against them for filing grievances; and (4) suppress their right to free speech, freedom of religion, and freedom of the press. Because the handwritten complaint did not comply with Fed.R.Civ.P. 8(a) and was signed only by Lester Jon Ruston, the court ordered each plaintiff to file a complaint on the standard form used by prisoners in section 1983 actions. Plaintiffs also were ordered to either pay the statutory filing fee or seek leave to proceed in forma pauperis. This order was sent to plaintiffs at the Dallas County Jail on July 9, 2004.
On July 15, 2004, plaintiffs submitted a two-page typewritten complaint signed by Ruston, Wyndol Eugene Blackmon, Michael Bannister, Edward Anthony Teal, Ronald Combs, and Orlando Espindola. However, the complaint was not filed on the proper form. Nor did any of the plaintiffs pay the statutory filing fee or seek leave to proceed in forma pauperis. The court notified each plaintiff of these deficiencies by order dated August 11, 2004. Although Ruston, Combs, Bannister, and Teal subsequently filed separate complaints on the proper form and motions to proceed in forma pauperis, none of these plaintiffs submitted certified copies of their inmate trust account statement as required by 28 U.S.C. § 1915(a)(2). Espindola and Blackmon failed to cure any of the deficiencies identified by the court. On September 9, 2004, the court ordered Ruston, Combs, Bannister, and Teal to submit inmate trust account statements. Espindola and Blackmon again were directed to either pay the statutory filing fee or seek leave to proceed in forma pauperis. Each plaintiff was warned that the failure to cure these defects within 20 days "will result in a recommendation that the complaint be dismissed for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b)." See NOTICE OF DEFICIENCY AND ORDER, 9/9/04.
This statute provides, in pertinent part:
A prisoner seeking to bring a civil action . . . without prepayment of fees or security therefor, in addition to filing the affidavit [for leave to proceed in forma pauperis], shall submit a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint . . . obtained from the appropriate official of each prison at which the prisoner is or was confined.28 U.S.C. § 1915(a)(2).
In response to these orders, Blackmon filed a motion to proceed in forma pauperis and Combs filed an amended pleading that is identical in all material respects to a complaint filed by him in another lawsuit pending in this district, Combs v. Dallas Co. Sheriff's Dep't., et al., No. 3-04-CV-1463-R. However, neither Blackmon nor Combs submitted certified copies of their inmate trust account statements. Ruston and Bannister also failed to submit inmate trust account statements as ordered. The envelope containing the deficiency notice sent to Teal was returned to the district clerk unopened on September 21, 2004. Espindola never paid the statutory filing or sought leave to proceed in forma pauperis.
On October 28, 2004, the magistrate judge recommended that the claims brought by Ruston, Bannister, Teal, and Espindola be dismissed for want of prosecution. Ruston v. Dallas Co. Sheriff's Dep't, 2004 WL 2413353 (N.D. Tex. Oct. 28, 2004). That same day, the court ordered Blackmon to submit a certified copy of his inmate trust account statement. See NOTICE OF DEFICIENCY AND ORDER, 10/28/04. On November 12, 2004, the envelope containing this deficiency notice was returned to the district clerk marked undeliverable. Upon learning that Blackmon had been transferred to the Montford Unit of the TDCJ-ID, the court resent the deficiency notice to plaintiff at his new address on November 23, 2004. Once again, Blackmon was warned that the failure to submit an inmate trust account statement within 20 days "will result in a recommendation that the complaint be dismissed for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b)." To date, Blackmon has not complied with this order.
The district judge adopted this recommendation, except as to Ruston who filed a change of address notice on November 15, 2004. See ORDER, 12/2/04. By judgment dated December 2, 2004, the claims brought by Bannister, Teal, and Espindola were dismissed without prejudice.
The court now determines that: (1) Lester Jon Ruston should not be allowed to proceed in forma pauperis because he has filed at least three prior civil actions that were dismissed as frivolous and he is not under imminent danger of serious physical injury; (2) the claims brought by Ronald Combs should be dismissed as duplicative; and (3) the claims brought by Wyndol Eugene Blackmon should be dismissed for want of prosecution.
A.
A prisoner may not proceed in forma pauperis if he has filed three or more civil actions in federal court that were dismissed as frivolous, malicious, or for failure to state a claim. 28 U.S.C. § 1915(g). This prohibition applies to suits dismissed on any of those grounds prior to the effective date of the Prison Litigation Reform Act. Adepegba v. Hammons, 103 F.3d 383, 386 (5th Cir. 1996). The only exception is for cases where the prisoner is "under imminent danger of serious physical injury." 28 U.S.C. § 1915(g).Lester Jon Ruston was allowed to proceed in forma pauperis in at least three prior civil actions. All three cases were dismissed as frivolous under 28 U.S.C. § 1915. Ruston v. Bush, No. 3-01-CV-1052-L (N.D. Tex. Aug. 29, 2001); Ruston v. Bush, No. 3-01-CV-1818-H (N.D. Tex. Jan. 23, 2002); Ruston v. Dallas County, No. 3-01-CV-2087-H (N.D. Tex. Oct. 15, 2002). Therefore, Ruston cannot proceed in forma pauperis in this case without demonstrating that he is "under imminent danger of serious physical injury." 28 U.S.C. § 1915(g). In an amended complaint filed on July 15, 2004, Ruston alleges that defendants violated his constitutional rights and those of other inmates incarcerated in the Dallas County Jail by engaging in "malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, and interference with contract rights." (Plf. Am. Compl. at 1, ¶ II). Ruston and the other plaintiffs also accuse defendants of ignoring the grievance process, denying them access to the courts and the effective assistance of counsel, suppressing evidence from grand juries, filing "fraudulent paperwork" with the district clerk, and conspiring to misappropriate taxpayer funds and coerce public servants. ( Id. at 1, ¶¶ II III). It is difficult to envision how any of this conduct, even if proved, places Ruston in "imminent danger of serious physical injury." Although Ruston generally alleges that plaintiffs have been denied proper medical care and have been subjected to assaults at the hands of mentally ill patients who are not taking their prescribed medication, the complaint is devoid of any facts to establish that he was under "imminent danger of serious physical injury" at the time this lawsuit was filed. See Choyce v. Dominguez, 160 F.3d 1068, 1070 (5th Cir. 1998) (determination of "imminent danger" must be made as of date complaint is filed). Consequently, Ruston is barred from proceeding in forma pauperis in this case.
Ruston also has been denied in forma pauperis status in seven other civil rights actions arising out of his incarceration in the Dallas County Jail. Ruston v. Dallas Co., Texas, 2004 WL 2512232 (N.D. Tex. Nov. 5, 2004), rec. adopted, 2004 WL 2847834 (N.D. Tex. Dec. 9, 2004); Ruston v. Dallas Co. Sheriff's Dep't, 2004 WL 2360020 (N.D. Tex. Oct. 19, 2004), rec. adopted, 2004 WL 2537060 (N.D. Tex. Nov. 8, 2004); Ruston v. Dallas Co., Texas, 2004 WL 1873058 (N.D. Tex. Aug. 19, 2004), rec. adopted, 2004 WL 2293861 (N.D. Tex. Sept. 29, 2004); Ruston v. Dallas Co. Sheriff's Dep't, 2004 WL 2101733 (N.D. Tex. Sept. 20, 2004), rec. adopted, 2004 WL 2168255 (N.D. Tex. Sept. 27, 2004); Ruston v. Dallas Co., Texas, 2004 WL 2100130 (N.D. Tex. Sept. 20, 2004); Ruston v. Dallas Co., Texas, 2004 WL 1933517 (N.D. Tex. Aug. 19, 2004), rec. adopted as modified, 2004 WL 1944060 (N.D. Tex. Aug. 30, 2004); Ruston v. Dallas Co. Sheriff's Dep't, 2004 WL 1782550 (N.D. Tex. Jul. 29, 2004), rec. adopted, 2004 WL 1924813 (N.D. Tex. Aug. 26, 2004). All seven cases ultimately were dismissed after Ruston failed to pay the statutory filing fee.
B.
A district court may dismiss a complaint filed in forma pauperis if it concludes that the action is frivolous or malicious. 28 U.S.C. § 1915(e)(2). An action is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831, 104 L.Ed.2d 338 (1989); Henson-El v. Rogers, 923 F.2d 51, 53 (5th Cir.), cert. denied, 111 S.Ct. 2863 (1991). A complaint is without an arguable basis in law if it is grounded upon an untenable or discredited legal theory. Neitzke, 109 S.Ct. at 1831. A claim may be deemed to lack an arguable basis in fact only if it is based upon factual allegations that are clearly fanciful or delusional in nature. Denton v. Hernandez, 504 U.S. 25, 32, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992). A complaint that duplicates claims asserted in an earlier case may be deemed malicious and subject to summary dismissal. See Pittman v. Moore, 980 F.2d 994, 995 (5th Cir. 1993); Wilson v. Lynaugh, 878 F.2d 846, 849 (5th Cir.), cert. denied, 110 S.Ct. 417 (1989).In his amended complaint filed on September 27, 2004, Ronald Combs asserts the same claims against the same defendants as in Combs v. Dallas Co. Sheriff's Dep't., et al., No. 3-04-CV-1463-R. Because the instant action involves claims that are duplicative of those asserted in another action, it should be summarily dismissed as malicious under 28 U.S.C. § 1915(e)(2). Pittman, 980 F.2d at 995; Wilson, 878 F.2d at 849.
Following a Spears hearing on December 17, 2004, the magistrate judge recommended that the earlier case be dismissed pursuant to 28 U.S.C. § 1915(e)(2). Combs v. Dallas Co. Sheriff's Dep't, 2004 WL 2958391 (N.D. Tex. Dec. 20, 2004). At that hearing, Combs stated he had no objection to the dismissal of his claims in the Ruston suit as duplicative.
C.
A district court has authority to dismiss a case for want of prosecution or failure to comply with a court order. FED. R. CIV. P. 41(b); Larson v. Scott, 157 F.3d 1030, 1031 (5th Cir. 1998). This authority "flows from the court's inherent power to control its docket and prevent undue delays in the disposition of pending cases." Boudwin v. Graystone Insurance Co., Ltd., 756 F.2d 399, 401 (5th Cir. 1985), citing Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). Such a dismissal may be with or without prejudice. See Long v. Simmons, 77 F.3d 878, 879-80 (5th Cir. 1996). A dismissal with prejudice is appropriate only if the failure to comply with the court order was the result of purposeful delay or contumacious conduct and the imposition of lesser sanctions would be futile. Id.; see also Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992).
Wyndol Eugene Blackmon was twice ordered to submit a certified copy of his inmate trust account statement by a date certain and warned of the consequences of failing to comply with that order. Despite this warning, Blackmon still has not submitted an inmate trust account statement or communicated with the court regarding his efforts to obtain this statement from jail officials. Without this information, the court cannot rule on Blackmon's application to proceed in forma pauperis and this case cannot proceed. Dismissal is clearly warranted under these circumstances. See Talley v. Owen, 2004 WL 212554 at *1 (N.D. Tex. Jan. 20, 2004), rec. adopted, 2004 WL 307436 (N.D. Tex. Feb. 11, 2004) (dismissing pro se prisoner civil rights action where plaintiff failed to comply with two court orders requiring him to submit inmate trust account statement by date certain).
RECOMMENDATION
Lester Jon Ruston's application to proceed in forma pauperis should be denied. Ruston should be ordered to pay the $150.00 statutory filing fee within 30 days after this recommendation is adopted by the district judge. If he fails to do so, his claims should be dismissed without further notice.
The claims brought by Ronald Combs should be dismissed with prejudice as duplicative pursuant to 28 U.S.C. § 1915(e)(2). The claims brought by Wyndol Eugene Blackmon should be dismissed without prejudice for want of prosecution pursuant to Fed.R.Civ.P. 41(b). The court should find that there is no just reason for delay and direct the entry of a final judgment against Combs and Blackmon in accordance with Fed.R.Civ.P. 54(b).