Miller v. University of Texas Medical BRanch et al

Filing 18

MEMORANDUM ORDER ADOPTING REPORT AND RECOMMENDATIONS. Plaintiff's objections are overruled and the Report of the Magistrate Judge 13 is ADOPTED as the opinion of the District Court. Plaintiff's application for leave to proceed in forma pa uperis 2 is DENIED. The above-styled civil action is DISMISSED WITH PREJUDICE as to the refiling of another IFP lawsuit raising the same claims as herein presented, but without prejudice to the refiling of this lawsuit without seeking IFP status an d upon payment of the statutory $400.00 filing fee. Should the Plaintiff pay the full filing fee within 15 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. Any and all motions which may be pending in this action are hereby DENIED. Signed by Judge Michael H. Schneider on 10/21/15. (mll, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
ROBERT MILLER #866293

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v.

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UNIVERSITY OF TEXAS MEDICAL
BRANCH, ET AL.

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CIVIL ACTION NO. 6:15cv382

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Plaintiff Robert Miller, 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. As Defendants, Miller named the University of Texas Medical Branch, TDCJ
Director Rick Thaler, Sgt. Yesenia Beltran, Warden Wayne Brewer, Dr. Eldon Monk, Sgt. Chris
Divin, Sgt. Marciela Rendon, Warden Edgar Baker, Dr. Paul Shrode, Nurse Virginia Shafer, Dr.
Robert Criss, Sheriff Jerry Franklin, Nurse Charlotte Bussey, and Captain Christopher Holman.
Miller raises a number of complaints in his lawsuit, including allegations that: he was denied
medical care by Beltran, Divin, Nurse Shafer, Dr. Monk, and Anita Williams; Divin lied to
psychiatrists at the Skyview Unit in an attempt to keep Miller at the Michael Unit; Beltran retaliated
against him because Miller did not want to continue their “crazy and bizarre sexual relationship”;
and Sheriff Jerry Franklin of Lynn County, Texas is extremely corrupt, has committed numerous
counts of premeditated attempted capital murder, and has tried to get Miller indicted for murder
without any evidence. Franklin has also tried to get Beltran and an officer named Aimee Clark to
coach gang members to kill Miller.
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After review of the pleadings, the magistrate judge issued a report recommending that the
lawsuit be dismissed. The magistrate judge observed that Miller has previously filed litigation
raising some or all of these same claims, including: Miller v. University of Texas Medical Branch,
et al., civil action no. 6:14cv833 (E.D.Tex., dismissed as barred by 28 U.S.C. §1915(g) on January
12, 2015, no appeal taken); Miller v. Franklin, et al., civil action no. 5:11cv149 (N.D.Tex., dismissed
as frivolous and malicious August 24, 2011, no appeal taken); Miller v. University of Texas Medical
Branch, et al., civil action no. 4:13cv1184 (S.D.Tex., dismissed as barred by 28 U.S.C. §1915(g) on
April 30, 2013, no appeal taken); and Miller v. University of Texas Medical Branch, et al., civil
action no. 1:13cv337 (E.D.Tex., dismissed as barred by 28 U.S.C. §1915(g) on February 12, 2014,
no appeal taken). The magistrate judge also determined, as did other courts listed above, that
Miller’s claims are barred by the three-strikes provision of 28 U.S.C. §1915(g).
Miller has filed two sets of objections and a motion for reconsideration construed as
objections. His conclusory assertions of imminent danger are not sufficient to trigger the exception
to 28 U.S.C. §1915(g), particularly in light of the fact that these same assertions were rejected in the
cases set out above. See Chavis v. Chappius, 618 F.3d 162, 170 (2nd Cir. 2010) (conclusory
allegations do not satisfy the imminent danger exception); accord, Perez v. Gooden. civil action no.
5:13cv36, 2013 U.S. Dist. LEXIS 80938 (E.D. Tex., June 10, 2013, no appeal taken); McClure v.
Langley, civil action no. 5:11cv208, 2012 U.S. Dist. LEXIS 72329 (E.D. Tex., May 24, 2012, no
appeal taken) (same). Miller did not address the fact that his claims have previously been raised and
rejected in other cases.
The Court has conducted a careful de novo review of those portions of the Magistrate Judge’s
proposed findings and recommendations to which the Plaintiff objected. See 28 U.S.C. §636(b)(1)
(district judge shall “make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.”) Upon such de novo review,
the Court has determined that the Report of the Magistrate Judge is correct and 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 (docket no. 13) is ADOPTED as the opinion of the District Court. It is further
ORDERED that the Plaintiff’s application for leave to proceed in forma pauperis (docket
no. 2) is DENIED. It is further
ORDERED that the above-styled civil action 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 $400.00 filing fee. It is further
ORDERED that should the Plaintiff pay the full filing fee within 15 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.
SIGNED this 21st day of October, 2015.

____________________________________
MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE

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