Wallace v. Dretke

Full title: TIMOTHY RANDOLF WALLACE, Plaintiff, v. DOUGLAS DRETKE, Director, TDCJ-CID…

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

Date published: Jan 15, 2004

No. 3:04-MC-001-D (N.D. Tex. Jan. 15, 2004)

Opinion

No. 3:04-MC-001-D

January 15, 2004

FINDINGS. CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

PAUL STICKNEY, Magistrate Judge

This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions and Recommendation of the United States Magistrate Judge follow:

FINDINGS AND CONCLUSIONS

Plaintiff, an inmate confined in the French Robertson Unit of the Texas Department of Criminal Justice, filed this action pursuant to 42 U.S.C. § 1983. Plaintiff seeks leave to proceed in forma pauperis under the provision of 28 U.S.C. § 1915. The Court finds Plaintiff's motion to proceed in forma pauperis should be denied.

Title 28 U.S.C. § 1915(g) provides:

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.

Plaintiff has previously been sanctioned by the Western District of Texas for malicious and vexatious conduct. See Wallace v. Manning, W-00-CA-290, slip op. at 4 (W.D. Tex. Nov. 21, 2000). The order imposing sanctions referenced seven cases filed in the Northern District of Texas, at least three of which resulted in strikes under 28 U.S.C. § 1915(g). Id. at 2 n. 2. Plaintiff is therefore barred from proceeding in forma pauperis unless he can show that he is in imminent danger of serious physical injury.

Plaintiff alleges there is a conspiracy to keep him incarcerated and that he has been denied legal counsel. He has made no showing that he is in imminent danger of serious physical injury. Plaintiff's motion to proceed in forma pauperis should be denied.

RECOMMENDATION:

For the foregoing reasons, the Court recommends that Plaintiff's motion to proceed in forma pauperis be denied. The Court also recommends that the District Court inform Plaintiff that his complaint will be subject to dismissal without notice unless he tenders the full $150.00 filing fee within thirty (30) days of the District Court's Order or obtains an extension of time in which to pay the filing fee.

INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a true copy of these findings, conclusions and recommendation on Plaintiff. Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must serve and file written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. A party's failure to file such written objections to these proposed findings, conclusions and recommendation shall bar that party from a de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 472 (1985). Additionally, any failure to file written objections to the proposed findings, conclusions and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).