Williams v. Giblin
Filing
2
MEMORANDUM OPINION regarding plaintiff's complaint. Signed by Judge Thad Heartfield on 7/29/2011. (bjc)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
JERRY DON WILLIAMS
§
VS.
§
KEITH F. GIBLIN, ET AL.
§
CIVIL ACTION NO. 1:11cv4
MEMORANDUM OPINION
Plaintiff Jerry Don Williams, an inmate confined at the Stiles Unit of the Texas Department
of Criminal Justice, Correctional Institutions Division, proceeding pro se, brings the above-styled
action against Keith F. Giblin, United States Magistrate Judge.
Discussion
Plaintiff complains Judge Giblin erred in his decision to deny plaintiff's motion to proceed
in forma pauperis, and the judge is denying plaintiff access to justice in civil action number
1:10cv28, styled Williams v. Collier, in violation of various constitutional rights and laws.
Plaintiff has not submitted the filing fee for this action; thus, the court assumes he is
requesting permission to proceed in forma pauperis.
Analysis
Title 28 U.S.C. § 1915(g) prohibits prisoners from repeatedly filing frivolous or malicious
complaints. Section 1915(g) provides as follows:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action
[in forma pauperis] . . . 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.
Petitioner brought this action as a petition seeking mandamus relief. The Fifth Circuit has
held that the nature of the underlying action determines whether or not the Prison Litigation Reform
Act (PLRA), including the three-strikes provision set forth above, is applicable. Where the
underlying action sounds in the nature of habeas corpus, the Act is not applicable; however, where
the underlying action sounds in the nature of a civil rights complaint, it is applicable. In re
Crittenden, 143 F.3d 919, 920 (5th Cir. 1998). Similarly, the Fifth Circuit has stated that the nature
of the underlying action would determine whether the fee requirements of the PLRA apply in
mandamus cases. In re Jacobs, 213 F.3d 289, 290 n.1 (5th Cir. 2000).
In this case, the underlying action consists of claims that plaintiff has been denied access to
the courts and denied certain constitutional rights. Thus, plaintiff’s claims are civil in nature, and
the fee requirements of the PLRA apply in this case. At least four of plaintiff's prior suits or appeals
have been dismissed as frivolous, malicious, or for failure to state a claim.1 As a result, Section
1915(g) is applicable.
As set forth above, plaintiff has had at least four prior lawsuits or appeals dismissed as
frivolous, malicious, and for failure to state a claim upon which relief may be granted. The
allegations set forth in plaintiff's complaint do not demonstrate that he was in "imminent danger of
serious physical injury." Section 1915(g) therefore bars plaintiff from proceeding with this lawsuit
on an in forma pauperis basis.
1
See Williams v. Johnson, 4:03cv3059 (S.D. Tex. Aug. 18, 2003) (dismissed as frivolous); Williams v.
Mosley,1:04cv364 (E.D. Tex. July 28, 2004) (dismissed as frivolous and failure to state a claim); Williams v. Johnson,
4:07cv2231 (S.D. Tex. July 17, 2007) (dismissed as frivolous and malicious); and Williams v. Mosley, 1:07cv483 (E.D.
Tex. June 23, 2008) (dismissed for failure to state a claim).
Conclusion
For the reasons set forth above, plaintiff is barred from proceeding on an in forma pauperis
basis. Accordingly, the above-styled action will be dismissed without prejudice pursuant to 28
U.S.C. § 1915(g). An appropriate final judgment shall be entered in accordance with this
Memorandum Opinion.
SIGNED this the 29 day of July, 2011.
____________________________
Thad Heartfield
United States District Judge
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