Shabazz v. Dretke

Full title: CURTIS SHABAZZ, PRO SE, Plaintiff, v. DOUG DRETKE, Director; BILL…

Court: United States District Court, N.D. Texas, Amarillo Division

Date published: Jul 6, 2004

2:04-CV-0044 (N.D. Tex. Jul. 6, 2004)

Opinion

2:04-CV-0044.

July 6, 2004

MEMORANDUM OPINION AND ORDER OF DISMISSAL

MARY ROBINSON, District Judge

Plaintiff CURTIS SHABAZZ, 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 defendants and has submitted an application to proceed in forma pauperis.

Under the "three strikes" provision of the Prison Litigation Reform Act, a prisoner who has had three prior civil actions or appeals, brought during detention, dismissed as frivolous, malicious, or for failure to state a claim, is barred from further proceeding in forma pauperis in such actions, unless the case fits into the narrow exception enumerated in Title 28, United States Code, section 1915(g). 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." Adepegba v. Hammons, 103 F.3d 383 (5^th Cir. 1996).

The Court notes that plaintiff SHABAZZ has sustained at least three dismissals which fulfill the "three strikes" provision of the PLRA. Cause No. 3:93-CV-0648 was dismissed by the United States District Court for the Northern District of Texas, Dallas Division, on November 8, 1993, as frivolous, and plaintiff's subsequent appeal was dismissed on June 15, 1994; Cause No. 9:93-CV-0118 was dismissed for frivolousness by the United States District Court for the Eastern District of Texas, Lufkin Division, on May 27, 1994, and no appeal was taken; Cause No. 9:95-CV-0094 was dismissed for frivolousness by the United States District Court for the Eastern District of Texas, Lufkin Division, on September 30, 1996, and plaintiff's subsequent appeal was dismissed on December 30, 1996; and Cause No. 3:97-CV-0033 was dismissed for frivolousness by the United States District Court for the Northern District of Texas, Dallas Division, on March 14, 1997, and plaintiff's subsequent appeal was dismissed on June 10, 1997.

Pursuant to Title 28, United States Code, section 1915(g), the Court FINDS plaintiff CURTIS SHABAZZ 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. Plaintiff's due process claim does not include an allegation of imminent danger of serious physical injury and his condition of confinement claim presents no facts showing imminent danger of serious physical injury as of the time he filed the instant suit. The only supporting factual allegations plaintiff presents are that he suffered a heart attack in 2001 and was placed on aspirin therapy and, also in 2001, his request for a new mattress was denied by an officer Bordan who told him the way to get a new mattress was to cut himself. Plaintiff has alleged no fact fulfilling the statutory exception as construed by the Fifth Circuit. Banos v. O'Guin, 144 F.3d 883, 885 (5^th Cir. 1998).

CONCLUSION

For the reasons set forth above, plaintiff's motion to proceed in forma pauperis 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.