Opinion
2:03-CV-0359
January 26, 2004
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Plaintiff DENNIS CLAY SHARPLESS, acting pro se and while incarcerated as a prisoner in the Texas Department of Corrections, Institutional Division, has filed suit pursuant to Title 42, United States Code, Section 1983 complaining against the above-referenced defendant and requesting permission to proceed in forma pauperis. Plaintiff complains that his grievance concerning receipt of a cup of milk instead of a pint did not produce a satisfactory resolution.
On April 26, 1996, the Prison Litigation Reform Act of 1995 (PLRA) was signed into law, modifying the requirements for proceeding in forma pauperis in federal courts. Under the PLRA's "three strikes" provision, a prisoner who has had three prior 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).
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.
The Court notes that plaintiff DENNIS CLAY SHARPLESS, while a prisoner as defined under the Prison Litigation Reform Act, has filed over seventy lawsuits in the Texas federal courts, sustained at least seven dismissals from the United States District Court for the Eastern District of Texas, Lufkin Division, which fulfill the "three strikes" provision of the PLRA, and has been sanctioned in the Southern, Eastern, and Northern Districts of Texas. Further, SHARPLESS has been barred from filing any new civil lawsuits unless he first pays the full filing fee and has received judicial permission.
Clause nos. 9:92-CV-0152; 9:92-CV-0193; 9:92-CV-0194; 9:92-CV-0195; 9:93-CV-0058; 9:93-CV-0059; and 9:93-CV-0060.
For example, cause nos. 4:00-CV-0564 (S.D. Tex.) and 4:01-CV-0024 (S.D.Tex.).
Plaintiff continues to file cases in this Court without payment of the filing fee or submitting any statement or proof that he has satisfied the previously imposed sanctions, and without seeking leave of court to file suit. Further, plaintiff's claim clearly does not fall within the narrow exception defined by Title 28, United States Code, section 1915(g). Pursuant to Miscellaneous Order No. 48, issued November 15, 1993, by the Honorable Barefoot Sanders, then Chief Judge of the United States District Court for the Northern District of Texas, this Court will enforce the sanction imposed by the United States District Court for the Northern District of Texas as well as those sanctions imposed by the courts of the Southern and Eastern Districts. Accord, Balawajder v. Scott, 160 F.3d 1066 (5th Cir. 1999).
Pursuant to Title 28, United States Code, section 1915(g), the District Judge FINDS plaintiff DENNIS CLAY SHARPLESS may not proceed in forma pauperis in this or any further new civil filings or appeals filed while a prisoner unless grounds are argued in a motion for leave which fall within the limited exception enumerated in 28 U.S.C. § 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. Further, plaintiff has not satisfied the multitude of sanctions assessed against him by the federal courts of the Southern, Northern, and Eastern districts.
CONCLUSION
Plaintiff has previously utilized his three "strikes" under the PLRA and is barred from proceeding in forma pauperis in any new civil proceeding filed in federal court while a prisoner unless he first satisfies the sanctions pending against him, pays the filing fee, and obtains judicial permission. Further, by the instant complaint, plaintiff has not alleged facts falling within the exception defined by Title 28, United States Code, section 1915(g) and has not shown he has satisfied the monetary sanctions assessed against him by the federal courts of the Southern, Northern, and Eastern districts of Texas.
For the reasons set forth above, plaintiff's motion to proceed in forma pauperis is DENIED.
The instant cause is DISMISSED WITHOUT PREJUDICE, provided that, before reasserting these claims in a subsequent suit, plaintiff first pays the entire filing fee, demonstrates he has satisfied all the monetary sanctions outstanding against him, and obtains judicial permission before filing.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Any pending motions are DENIED.
IT IS SO ORDERED.