Kelley v. Rupert et al
Filing
64
MEMORANDUM OPINION AND ORDER ADOPTING 42 Report and Recommendations, and overruling pltf's objections; denying 37 Motion for Relief from Judgment (as construed), denying 47 Motion for Reconsideration, filed by William Steed Kelley. All oth er motions not previously ruled upon are hereby DENIED. The Clerk shall accept no further filings in this case except for a notice of appeal and an application for leave to proceed in forma pauperis which relates to such appeal. Any other filing received in this case shall be returned unfiled or stricken from the docket after filing without further notice or order from the Court. Signed by Judge Leonard Davis on 08/09/11. cc:pltf 8-10-11(mll, ) Modified on 8/10/2011 (mll, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
WILLIAM STEED KELLEY
§
v.
§
JOHN RUPERT, ET AL.
§
CIVIL ACTION NO. 6:11cv134
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND DENYING PLAINTIFF’S MOTIONS FOR RELIEF FROM JUDGMENT
The Plaintiff William Steed Kelley, proceeding pro se, filed this civil rights lawsuit under
42 U.S.C. §1983 complaining of alleged deprivations 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.
Kelley complained of his confinement in the “super segregation” section of the Coffield Unit.
After review of the pleadings, the Magistrate Judge issued a Report on March 29, 2011,
recommending that the lawsuit be dismissed because Kelley failed to show that he was in imminent
danger of serious physical injury, as required for him to proceed in forma pauperis under 28 U.S.C.
§1915(g), and that he failed to show proof that he had satisfied sanctions imposed upon him by the
Northern District of Texas, which barred him from filing further lawsuits until he did so. When
objections from Kelley were not received in a timely manner, his lawsuit was dismissed on May 19,
2011.
The next day, an amended complaint from Kelley was received and filed. He followed this
with a motion to hold the proceedings in partial abeyance, a motion for appointment of counsel,
objections to the Report, a motion for a preliminary injunction, two letters, and another motion for
injunctive relief.
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Although none of these pleadings are properly filed in closed cases, the Magistrate Judge
reviewed Kelley’s objections to the Magistrate Judge’s Report, in conjunction with his other
pleadings, as a motion to alter or amend the judgment. See United States v. Gallardo, 915 F.2d 149,
150 n.2 (5th Cir. 1990) (construing objections to magistrate judge’s report received after the case
was dismissed as a motion to alter or amend the judgment).
After review of Kelley’s pleadings, the Magistrate Judge issued a Report on June 6, 2011,
recommending that the objections, construed as a motion to alter or amend the judgment, be denied.
The Magistrate Judge concluded that Kelley’s references to potential psychological harm failed to
show that he is in “imminent danger of serious physical injury,” as required to trigger the exception
to 28 U.S.C. §1915(g).
In addition, the Magistrate Judge said, neither Kelley’s pleadings nor his amended complaint
make any reference to the fact that he has been barred from filing any new lawsuits until he satisfies
the sanctions imposed upon him by the U.S. District Court for the Northern District of Texas. In
Kelley v. Texas, 117 Fed.Appx. 915, 2004 WL 2634173 (5th Cir., November 19, 2004), the Fifth
Circuit affirmed the Southern District’s dismissal of a lawsuit from Kelley, which dismissal was
based in part on Kelley’s failure to comply with the Northern District’s sanction orders. The
Southern District also imposed additional sanctions of $300.00 as well as barring Kelley from filing
any new lawsuits without permission. The Magistrate Judge noted that in the Southern District case,
Kelley argued, as he does in the present lawsuit, that he is shuffled from cell to cell every few days
and that placement in segregation has caused various physical and psychological problems. The
Southern District determined that these claims were frivolous and malicious. In any event, the
Magistrate Judge stated that Kelley’s objections showed no basis for setting aside the final judgment
and recommended that these objections, construed as a motion to alter or amend the judgment, be
denied.
Kelley filed objections to this Report on July 25, 2011. Since the Report was entered on June
6, Kelley has also filed a motion for temporary restraining order, a supplemental motion to hold the
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case in partial abeyance, another motion for a temporary restraining order, a notice of supplemental
evidence, another motion for reconsideration of the final judgment, another notice of supplemental
evidence, another motion for a temporary restraining order, a motion to a writ of habeas corpus ad
testificandum, a second supplemental notice of evidence, a third supplemental notice of evidence,
objections to a previous denial of a temporary restraining order, a fifth motion for injunctive relief,
a letter complaining that he is unable to file documents with the Court, another letter regarding his
mail, a sixth motion for injunctive relief, a notice withdrawing consent to trial before the Magistrate
Judge, and a notice of supplemental evidence in support of his complaint.
In Kelley’s second motion for relief from judgment, which was filed after the Report of the
Magistrate Judge recommending denial of the first such motion, Kelley says that he tried to file his
objections, but these were delayed by prison officials, with the result that they were received by the
Court after the case was dismissed. This motion concedes that Kelley has been sanctioned for “prior
litigation efforts” and says that he must obtain court permission and allege facts showing that he is
in imminent danger of serious physical injury in order to proceed in forma pauperis under 28 U.S.C.
§1915(g). He states that he has shown such imminent danger in his complaint and particularly in
his first amended complaint. However, as the Magistrate Judge’s Report demonstrates, Kelley’s
assertions in his first amended complaint fall well short of the necessary showing of a finding of
imminent danger of serious physical injury. Kelley’s motion also makes no mention of the
requirement that he show proof of satisfaction of the monetary sanctions from the Northern District
before he may be allowed to proceed.
In his objections to the Magistrate Judge’s Report, Kelley terms this Report a “farce
undeserving of any serious rebuttal.” He states that the defendants have endangered him by
“fingering him as an informant,” and so “plotting prisoners” have directed threats at him, promising
to kill him should their plots be revealed to the staff. Kelley also pointed to an alleged “security
breach” which he claimed placed him in danger, but conceded that he has refused to provide prison
officials with information so that they can eliminate this breach.
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Because he cannot reveal the precise nature of the security breach, he says that the public,
the prison staff, and Kelley himself are all in danger. He also asserts that his 21 years in segregated
confinement is having a deleterious impact on his physical and mental health.
Kelley asserts that the “imminent danger” provision has been held to be satisfied by
allegations that prison staff refused protection to prisoners targeted by gangs, disclosed a prisoner’s
history as an informant, resulting in threats and assaults, “defamed” a prisoner, resulting in threats
from others, or kept a prisoner near known enemies. He says that other cases have held that claims
of denial of medical treatment have been held sufficient.
In an attached affidavit, Kelley complains of the treatment of his objections as a Rule 59
motion, and demands that his motion to vacate the judgment, which was filed after the Magistrate
Judge’s Report, be addressed by the Court.
He then complains about a number of statements made in the Report. First, he complains
that the Report said that his objections were not timely filed, saying that under the mailbox rule, they
were timely filed on May 8, 2011. Whether or not this is accurate, in light of the Court’s order
saying that the objections were “due by” May 9, Kelley’s objections were presented to and
considered by the Court.
Kelley asserts that his claims of physical harm come from being locked in segregation for 21
years, under conditions found unconstitutional in Ruiz v. Johnson, 37 F.Supp.2d 855 (S.D.Tex.
1999), reversed 243 F.3d 941 (5th Cir. 2001). Aside from the inherent problems in relying on a case
which has been reversed, Kelley’s argument states in effect that inmates in segregation for lengthy
periods of time are ipso facto under imminent danger of serious physical injury and thus need not
make any further showing of such danger in order to satisfy the requirements of Section 1915(g).
No basis in law exists for such a conclusion. He also raises various other objections to the
Magistrate Judge’s Report, none of which contain any merit.
In Kelley v. Johnson, 204 F.3d 1116, 1999 WL 1328122 (5th Cir., December 14, 1999), the
Fifth Circuit stated as follows:
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Kelley alleges that he is being tortured and is currently suffering serious physical and
emotional / psychological injuries due to his placement in administrative segregation.
However, Kelley has not alleged facts which indicate that he is in imminent danger
of serious physical injury. See §1915(g). Therefore, §1915(g) applies to bar his
appeal IFP, and his motion to appeal IFP is denied. See Banos v. O’Guin, 144 F.3d
883, 885 (5th Cir. 1998). This Court has previously rejected the argument now raised
by Kelley that the application of §1915(g) has denied him access to the courts. See
Carson v. Johnson, 112 F.3d 818, 821-22 (5th Cir. 1997).
Kelley raises essentially the same contentions in the present case to show that he is in
imminent danger of serious physical injury. As the Fifth Circuit said, these contentions are not
sufficient to show that he is in imminent danger of serious physical injury. Hence, these claims are
insufficient to trigger the exception to 28 U.S.C. §1915(g).
More significantly, however, Kelley simply fails to mention one of the most important factors
of all. The Magistrate Judge noted in the original Report as follows:
In Kelley v. Stice, et al., civil action no. 2:94cv360 (N.D.Tex., December 29, 1995,
appeal dismissed), the Northern District of Texas sanctioned Kelley $120.00 and
ordered that no further lawsuits be accepted from him until this sanction was satisfied
in full. In In re Kelley, cause no. 2:96mc18 (N.D.Tex., January 9, 1997, no appeal
taken), Kelley was sanctioned an additional $200.00, and the district court once again
ordered that no further lawsuits be accepted from him until these sanctions were
satisfied.
This Court, the Eastern District of Texas, honors sanctions imposed by other federal
district courts within the State of Texas. General Order No. 94-6 (E.D.Tex., February
2, 1994); Balawajder v. Scott, 160 F.3d 1066, 1068 (5th Cir. 1998) (district court
does not abuse its discretion in honoring sanctions imposed by other district courts).
In this case, Kelley fails to show that he has satisfied all of the sanctions which have
been imposed upon him, nor any other basis for the granting of leave to file this case,
and so his lawsuit may be dismissed on this basis as well.
In Kelley v. State of Texas, et al., civil action no. 4:03cv1374 (S.D.Tex.), Kelley complained,
among a large number of other allegations, that he was being shuffled from cell to cell every few
days and that the deprivations in administrative segregation were causing him to experience
psychological problems including loss of sleep, fatigue, inability to concentrate, short-term memory
loss, headaches, loss of impulse control, aches, pains, and irritable bowel syndrome. After
discussing the meritless nature of Kelley’s claims, the Southern District noted that “this action was
filed in violation of a Northern District order that prohibits the filing of new complaints without prior
permission of a district or magistrate judge.” The court imposed sanctions on Kelley in the amount
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of $300.00. As noted above, the dismissal of this case was upheld by the Fifth Circuit. Kelley v.
Texas, 117 Fed.Appx. 915.
In Kelley v. Stice, et al., civil action no. 2:94cv360 (N.D.Tex.), the Northern District of Texas
sanctioned Kelley $120.00 and ordered that no more lawsuits be accepted from him until he satisfied
the sanction or unless leave is first obtained to file the new lawsuit. In In re Kelley, civil action no.
2:96mc18 (N.D.Tex.), the Northern District sanctioned Kelley $200.00 and ordered that no new
lawsuits from Kelley be filed until he has satisfied “all monetary sanctions outstanding against him.”
After Kelley has done so, the Northern District said, he still must obtain permission to file any new
cases.
At the time that Kelley filed this lawsuit, he had outstanding sanctions, just from these three
cases, totaling $620.00. Under the terms of the sanction imposed by the Northern District, he is
barred from filing new cases until he shows proof that he has satisfied “all monetary sanctions
outstanding.” Kelley offers no proof that he has satisfied these sanctions, and indeed does not even
allude to the requirement that he do so.
As the Magistrate Judge observed, the Eastern District of Texas honors sanctions imposed
by other district courts. General Order No. 94-6 (E.D.Tex., February 2, 1994); Balawajder v. Scott,
160 F.3d 1066, 1068 (5th Cir. 1998) (district court does not abuse its discretion in honoring
sanctions imposed by other district courts). Kelley has not shown proof that he has satisfied all of
the sanctions imposed upon him, nor that he is in imminent danger of serious physical injury.
Consequently, he has shown no basis for relief from the final judgment in this case,
The Court has conducted a careful de novo review of the pleadings in this cause, including
the Plaintiff’s objections and motion for relief from judgment, the Report of the Magistrate Judge,
the Plaintiff’s objections thereto, and all of the pleadings and motions filed by the Plaintiff. Upon
such de novo review, the Court has concluded that the Report of the Magistrate Judge is correct and
that the Plaintiff’s objections and other pleadings and motions 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 (docket no. 42) is hereby ADOPTED as the opinion of the District Court. It is further
ORDERED that the Plaintiff’s motions for relief from judgment (docket no.’s 37, as
construed, and 47) are hereby DENIED. It is further
ORDERED that all other motions not previously ruled upon are hereby DENIED. Finally,
it is
ORDERED that the Clerk shall accept no further filings in this case except for a notice of
appeal and an application for leave to proceed in forma pauperis which relates to such appeal. Any
other filing received in this case shall be returned unfiled or stricken from the docket after filing
without further notice or order from the Court.
So ORDERED and SIGNED this 9th day of August, 2011.
__________________________________
LEONARD DAVIS
UNITED STATES DISTRICT JUDGE
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