Lowe v. Dollison et al

Filing 45

ORDER ADOPTING 38 Report and Recommendations, and overruling pltf's objections. Plaintiffs IFP status is hereby REVOKED, and that this civil action is DISMISSED with prejudice as to the refiling of another IFP lawsuit raising the same claims a s herein presented, but without prejudice to the refiling of this lawsuit without seeking IFP status and upon payment of the statutory $350.00 filing fee. Should Plaintiff pay the full filing fee within 30 days after the date of entry of final j udgment in this case, he shall be allowed to proceed in the lawsuit as through the full fee had been paid from the outset. Any and all motions which may be pending in this action are herebyDENIED. Signed by Judge Leonard Davis on 01/18/12. cc:pltf & dfts 1-19-12(mll, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
ARTHUR LOWE #669750

§

v.

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KIMBERLY DOLLISON

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CIVIL ACTION NO. 6:11cv108

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Plaintiff Arthur Lowe, proceeding pro se, filed this civil rights lawsuit under 42
U.S.C. §1983 complaining of alleged violations of his constitutional rights. This Court ordered that
the case be referred to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3)
and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United
States Magistrate Judges.
Lowe complained that Officer Dollison deprived him of food over a period of
approximately 50 hours, between October 23 and October 26, 20111, apparently in retaliation for
his having requested a Diet for Health meal. An evidentiary hearing has been conducted and Officer
Dollison has been ordered to answer the lawsuit, and has done so.
The Magistrate Judge noted that Lowe had previously filed the following lawsuits:
Lowe v. Harrald, et al., civil action no. 4:94cv48 (S.D.Tex., dismissed as frivolous March 22, 1994,
no appeal taken); Lowe v. Richarson, civil action no. 6:10cv310 (E.D.Tex., dismissed as frivolous
September 3, 2010, appeal dismissed as frivolous April 22, 2011); and Lowe v. Davenport, civil
action no. 6:10cv176 (dismissed as frivolous September 8, 2010, appeal dismissed as frivolous
October 3, 2011). The present lawsuit was signed by Lowe on March 4, 2011, which is after all three
of the district court dismissals, but before the appeals of the dismissals in Richarson and Davenport
were themselves dismissed as frivolous.
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After this review of Lowe’s litigation history, the Magistrate Judge issued a Report
on November 3, 2011, recommending that the lawsuit be dismissed as barred by the “three strikes”
provision of 28 U.S.C. §1915(g). The Magistrate Judge, citing Parker v. Dickens, civil action no.
9:09cv110, 2010 WL 2640381, Report adopted at 2010 WL 2640377 (E.D.Tex., June 30, 2010,
appeal dismissed), concluded that when Lowe’s appeals in the Davenport and Richarson cases were
dismissed as frivolous, the strikes imposed by the district court dismissals became effective as of the
date of the district court dismissal, rather than the date of the dismissal of the appeal. Thus, at the
time that Lowe filed the present lawsuit, he had accumulated three strikes, through the district court
dismissals in Davenport, Richarson, and Harrald. These strikes may have been stayed while the
Davenport and Richarson cases were on appeal, but once these appeals were dismissed as frivolous,
the district court strikes became effective as of the date that they were imposed. As noted above, all
three of these strikes were imposed prior to the signing of the present lawsuit.
Because Lowe had three strikes when he filed the present lawsuit, the Magistrate
Judge said, he cannot proceed in forma pauperis, but must pay the full filing fee or show that he is
in imminent danger of serious physical injury as of the date of the filing of the lawsuit. Lowe did
neither of these, and so the Magistrate Judge recommended that the lawsuit be dismissed.
Lowe filed objections to the Magistrate Judge’s Report on November 14, 2011. In
his objections, Lowe correctly notes that the date of the dismissal by the Fifth Circuit of his appeal
in Davenport was October 3, 2011, rather than October 27, 2011, as stated by the Magistrate Judge.1
Lowe complains that the Defendant Kimberly Dollison was supposed to answer his
lawsuit by June 3, 2011, but did not answer until June 22. He notes that he has filed a motion for
default judgment concerning this untimely answer.

October 27 was the date that the district court received notification of the Fifth Circuit’s
action. The copy of the order received by the district court shows that it was filed in the Fifth Circuit
on October 3, 2011.
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Turning to his litigation history, Lowe states that the judgment in Davenport has not
become final because it was rendered on October 3, 2011, and he is preparing to file a petition for
writ of certiorari with the U.S. Supreme Court. Because Lowe had 90 days from the date of the Fifth
Circuit’s decision, his petition for certiorari was due on January 3, 2012. Neither the on-line dockets
of the U.S. Supreme Court nor the Fifth Circuit contain any indication that Lowe has filed a petition
for writ of certiorari, and Lowe offers nothing to show that he has in fact filed a certiorari petition
with the Supreme Court. Hence, even assuming that the time for filing a certiorari petition sets off
the date of finality of Lowe’s appeal, this time has now expired, rendering the strikes imposed by the
district court’s decision and the Fifth Circuit’s decision final.
Lowe next argues that according to the Fifth Circuit’s decision in Adepegba v.
Hammons, 103 F.3d 383 (5th Cir. 1996), a district court’s dismissal of a lawsuit as frivolous could
count as a strike, “but our affirmance, standing alone, does not.” This is correct; an affirmance of
a district court dismissal as frivolous does not itself count as a strike. In the present case, however,
the dismissal of Lowe’s district court cases were not merely affirmed by the Fifth Circuit; rather, the
appellate court dismissed Lowe’s appeals as frivolous. As the Fifth Circuit explained, “both the
frivolous appeal and a lower court’s dismissal as frivolous count [as strikes].” Adepegba, 103 F.3d
at 388. Lowe’s objection on this point is without merit.
Next, Lowe argues that Harrald was not dismissed as frivolous, pointing out that it
was dismissed without prejudice. In that case, Lowe complained that he was defamed, in that false
information about him was given by a police officer to the Houston Chronicle. The district court
noted that a defamation claim did not involve the deprivation of any rights, privileges, or immunities
secured by the Constitution or laws of the United States and concluded that “this action will be
dismissed without prejudice under 28 U.S.C. §1915(d).” This statute read as follows:
The court may request an attorney to represent any such person [i.e. one proceeding
in forma pauperis] unable to employ counsel and may dismiss the case if the
allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.

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Lowe does not allege, and the record does not show, that Harrald was dismissed because his
allegation of poverty was untrue; rather, it is clear from the court’s opinion that the case was
dismissed as frivolous or malicious, as the defamation claim did not set out a valid claim under the
Constitution or laws of the United States. See Cook v. Houston Post, 616 F.2d 791, 794 (5th Cir.
1980).
The Fifth Circuit has held that a dismissal without prejudice may count as a strike for
purposes of Section 1915(g). Lyle v. Anderson, 77 Fed.Appx. 734. 2003 WL 22319471 (5th Cir.,
October 10, 2003), citing Patton v. Jefferson Correctional Center, 136 F.3d 458. 462-64 (5th Cir.
1998). Thus, the fact that Harrald was dismissed without prejudice does not prevent it from being
counted as a strike. This objection is without merit.
In addition, Lowe notes that Harrald was decided prior to the enactment of the Prison
Litigation Reform Act. However, this fact also does not prevent the dismissal from being counted
as a strike. Adepegba, 103 F.3d at 388 n.3 (stating that “we dismissed as frivolous two other
Adepegba appeals before the effective date of the PLRA, which would also count under the statute.”
See also Simpson v. Cockrell, civil action no. 7:04cv192, 2004 WL 2896512 (N.D.Tex., December
1, 2004, no appeal taken) (citing Adepegba to hold that “cases dismissed as frivolous prior to the
enactment of the Prison Litigation Reform Act may be counted as strikes under §1915(g);” Hicks
v. Benson, civil action no. 3:10cv97, 2010 WL 1051163 (N.D.Tex., March 19, 2010, no appeal
taken) (same). Lowe’s objection on this point is without merit.
Lowe’s contention that Dollison was in default also shows no basis upon which to
set aside the Report of the Magistrate Judge. Default judgments are a drastic remedy, not favored by
the Federal Rules and resorted to by courts only in extreme circumstances. Sun Bank of Ocala v.
Pelican Homestead and Savings Ass’n, 874 F.3d 274, 276 (5th Cir. 1989). Consequently, a party
is not entitled to a default judgment as a matter of right, even where the defendant is technically in
default. Ganther v. Ingle, 75 F.3d 207, 212 (5th Cir. 1996). The Fifth Circuit has stated that “federal
courts generally disfavor default judgments, preferring to resolve disputes according to their merits.”
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Lindsey v. Prive Corp., 161 F.3d 886, 892 (5th Cir. 1998). The granting or denying of a default
judgment is committed to the sound discretion of the district court. Mason v. Lister, 562 F.2d 343
(5th Cir. 1977). Lowe offers nothing to show that denying his request for a default judgment because
Dollison’s answer was three weeks late would amount to an abuse of discretion. This objection is
without merit.
Finally, Lowe argues that he filed a “notice to withhold consent,” requesting that all
further proceedings in the case be conducted by the district judge and not the magistrate judge.
Nonetheless, Lowe says, the magistrate judge has been conducting further proceedings in his case,
which he says is an “abuse of discretion.”
The case has been referred to the Magistrate Judge for the hearing of pre-trial matters
and to submit recommendations for the disposition of prisoner petitions challenging the conditions
of confinement or for motions for injunctive relief, for judgment on the pleadings, for summary
judgment, to dismiss for failure to state a claim upon which relief may be granted, or to involuntarily
dismiss an action, as set out in 28 U.S.C. §636(b). No consent is required for a referral under 28
U.S.C. §636(b), and litigants may not withhold consent to a referral under this provision. Newsome
v. EEOC, 301 F.3d 227, 230 (5th Cir. 2002). The §636(c) consent, if elected by the parties, is
consent to allow the Magistrate Judge to preside over the case to its conclusion and enter final
judgment. No such consent has been given here, and the authority to enter final judgment in the case
remains with the undersigned United States District Judge. Lowe fails to show that the Magistrate
Judge has acted outside of the bounds of his authority under the §636(b) referral. His objections are
without merit.
The Court has conducted a careful de novo review of the pleadings in this cause,
including the Report of the Magistrate Judge and the Plaintiff’s objections thereto. Upon such de
novo review, the Court has concluded that the Report of the Magistrate Judge is correct and that the
Plaintiff’s objections are without merit. It is accordingly

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ORDERED that the Plaintiff’s objections are overruled and the Report of the
Magistrate Judge is ADOPTED as the opinion of the District Court. It is further
ORDERED that the Plaintiff’s in forma pauperis status is hereby REVOKED. It is
further
ORDERED that the above-styled civil action be and hereby is DISMISSED with
prejudice as to the refiling of another in forma pauperis lawsuit raising the same claims as herein
presented, but without prejudice to the refiling of this lawsuit without seeking in forma pauperis
status and upon payment of the statutory $350.00 filing fee. It is further
ORDERED that should the Plaintiff pay the full filing fee within 30 days after the
date of entry of final judgment in this case, he shall be allowed to proceed in the lawsuit as through
the full fee had been paid from the outset. Finally, it is
ORDERED that any and all motions which may be pending in this action are hereby
DENIED.
So ORDERED and SIGNED this 18th day of January, 2012.

__________________________________
LEONARD DAVIS
UNITED STATES DISTRICT JUDGE

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