Opinion
2:03-CV-0423
January 6, 2004
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Plaintiff LARRY GENE SEWELL, acting pro se and while a prisoner incarcerated in the Texas Department of Criminal Justice, Institutional Division, has filed suit pursuant to Title 42, United States Code, Section 1983 complaining against the above-named defendant. Plaintiff has not paid the filing fee or requested pauper status. To the extent a request for pauper status is implicit in plaintiff's filing, he has already been informed that he does not qualify for a grant of pauper status.
Plaintiff has filed at least twelve other lawsuits in federal court, four of which were dismissed on grounds falling within the parameters of Title 28, United States Code, section 1928(e)(2)(b). See, Sewell v. Strain, no. 6:91-CV-0272 (E.D.Tx.), Sewell v. Cooper et al., no. 2:92-CV-0291 (N.D.Tx.), and Sewell v. Latham et al, no. 6:92-CV-0640 (E.D.Tx.). See, also, plaintiff's appeal in Sewell v. Strain, appeal no. 92-4021. Each of these four cases was filed by plaintiff while a prisoner and counts as a "strike" under the Prison Litigation Reform Act (the PLRA).
The Fifth Circuit has examined the PLRA and construed it to apply to all cases pending at the time of its passage, as well as those filed afterwards. Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996). 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." Id.
Pursuant to Title 28, United States Code, section 1915(g), the Court FINDS plaintiff LARRY GENE SEWELL 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 the instant cause were accompanied by the necessary motion, the grounds presented in the instant suit do not fall within the statutory exception. By his vague and contradictory allegations, plaintiff states he is presently housed in 19 dorm where he has experienced problems with old enemies who have threatened him and forced him into several altercations, wanting to hurt plaintiff because he is not a gang member. Nevertheless, plaintiff's step 1 grievance response shows he was assigned to 8 Building on October 2, 2003; and, on his step 2 grievance, plaintiff lists his own housing assignment as 8-2-39, showing he had, indeed, been transferred to 8 Building by the time he submitted the step 2 grievance. It is clear plaintiff has presented 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, implicit in his submission of this complaint without simultaneous payment of the filing fee, 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.