Opinion
No. 3:04-CV-1530-G.
October 19, 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 Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
Plaintiff is an inmate currently incarcerated in the state prison system. On July 14, 2004, he filed this complaint pursuant to 42 U.S.C. § 1983 and moved to proceed in forma pauperis. The Court found that the motion to proceed in forma pauperis should be denied based on the three-strikes provision of 28 U.S.C. § 1915(g). The Court, however, granted plaintiff thirty days to pay the full filing fee of $150.00 to the Clerk of the Court before recommending that in forma pauperis be denied. The Court also informed plaintiff that failure to pay the filing fee within the time allotted would result in a recommendation that in forma pauperis be denied and that this action be dismissed without prejudice for failure to comply with a court order under Fed.R.Civ.P. 41(b). To date, plaintiff has not paid the requisite filing fee.
II. THREE STRIKES
As a prisoner seeking to proceed in forma pauperis, plaintiff's action is subject to review under the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915. One of the major changes promulgated by the PLRA is the "three-strikes" provision set forth in § 1915(g). That provision states:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section, if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
In short, inmates may not proceed without the prepayment of fees, if they have previously brought three or more civil actions or appeals in federal court that were dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted, unless they are in imminent danger of serious physical injury.
A review of relevant court records indicates that plaintiff's current filing falls under the PLRA "three-strikes" provision. See Ruston v. Dallas County Sheiff's Dept., No. 3:04-CV-1437-K (N.D. Tex. 2004); Ruston v. Bush, No. 3:01-CV-1052-L (N.D. Tex. August 29, 2001); Ruston v. Bush, 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).
Due to these strikes plaintiff may not proceed with his current action without the prepayment of fees under 28 U.S.C. § 1915(g) unless it appears that he is subject to imminent danger of serious physical injury. Plaintiff has made no allegation that he is in any imminent danger. Consequently, he must prepay the requisite filing fee before this case can proceed.
III. INVOLUNTARY DISMISSAL
Rule 41(b) of the Federal Rules of Civil Procedure permits a court to dismiss sua sponte an action for failure to prosecute or follow orders of the court. McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988). This authority flows from a court's inherent power to control its docket, prevent undue delays in the disposition of pending cases, and avoid congested court calendars. Link v. Wabash R.R. Co., 370 U.S. 626, 629-31 (1962). Plaintiff has failed to comply with the Court's order that he pay the filing fee within thirty days. Accordingly, the Court should dismiss his complaint without prejudice for failure to follow an order of the Court.IV. RECOMMENDATION
For the foregoing reasons, it is recommended that the Court deny plaintiff's motion to proceed in forma pauperis and dismiss his complaint without prejudice for failure to comply with an order of the Court pursuant to Fed.R.Civ.P. 41(b). As 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 $150 filing fee or a showing of imminent danger of serious physical injury.