Walker v. Mitchele et al

Filing 54

ORDERED that the complaint is dismissed with prejudice for purposes of IFP proceedings pursuant to 28 USC 1915(g). Ordered that Defendants' 43 motion to revoke Mr Walker's IFP status is granted and Mr Walker's IFP status is revoked. Mr Walker may resume his lawsuit if he pays the entire filing fee of $400 within 30 days after the entry of the final judgment. Ordered that all motions not previously ruled on are denied. Signed by Judge Ron Clark on 4/16/2017. (bjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION

GREGORY WALKER, #1661270

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VS.

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MAJOR MITCHELE, ET AL.

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CIVIL ACTION NO. 6:16cv1265

ORDER OF DISMISSAL
Plaintiff Gregory Walker, an inmate confined at the Coffield Unit of the Texas prison
system, proceeding pro se and in forma pauperis, filed the above-styled and numbered civil rights
lawsuit pursuant to 42 U.S.C. § 1983. The complaint was referred to United States Magistrate
Judge K. Nicole Mitchell, who issued a Report and Recommendation (Dkt. #46) concluding that
Defendants’ motion to revoke Mr. Walker’s in forma pauperis status (Dkt. #43) should be granted
and that the case should be dismissed for purposes of in forma pauperis proceedings pursuant to
28 U.S.C. § 1915(g). Mr. Walker has filed objections (Dkt. #53).
Facts of the Case
The complaint was filed on November 4, 2016. Mr. Walker initially complains about an
incident that occurred on August 18, 2015. He was working as a janitor in A-Side administrative
segregation. He states he regularly goes to the pill window at an appointed time to pick up his
HIV medication.

Officer Dunklin, however, refused to let him go to the pill window and

threatened to lock him up if he did not go back to work. The situation occurred again on
September 3, 2015. Mr. Walker refused to work without his medication and was locked up for
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six hours without his medication. A lieutenant confirmed with the medical department that he
needed his medication, but the lieutenant left him locked up until 10:30 p.m. Mr. Walker wants
the officers to be punished. A response to a Step 1 Grievance reveals that security staff called the
infirmary and was told that the pill window was closed. The response also reveals that Mr. Walker
was reassigned to B-Side on September 11, 2015.

Upon review of the complaint, Judge

Mitchell concluded that the Defendants should respond to the lawsuit.
Report and Recommendation
Judge Mitchell found that the Defendants’ motion to revoke Mr. Walker’s in forma
pauperis status should be granted. Court records reveal that Mr. Walker has a history of filing
frivolous lawsuits. The following four lawsuits were dismissed as frivolous or for failure to
state a claim upon which relief may be granted before the present lawsuit was filed: Walker v.
Dallas County Parole Board, No. 3:97-CV-0428-D (N.D. Tex. Sept. 25, 1997) (no appeal); Walker
v. State of Texas, No. 3:96-CV-3284-X (N.D. Tex. Jan. 22, 1998) (no aapeal); Walker v. D.P.O.
Arresting Officer, No. 3:97-CV-0128-T (N.D. Tex. March 31, 1998) (no appeal); Walker v. Dallas
County, No. 3-98-CV-785-R (N.D. Tex. May 7, 1998), appeal dismissed, No. 98-10602 (5th Cir.
June 30, 1998). He also had at least two cases dismissed pursuant to the “three strikes” provisions
of 28 U.S.C. § 1915(g): Walker v. Dallas County Jail, No. 3:98-CV-2931-X (N.D. Tex. Jan. 20,
1998); Walker v. Whittier, No. 3-98-CV-1466-D (N.D. Tex. Oct. 8, 1998).
Congress decided to end the practice by inmates of repeatedly filing frivolous lawsuits and
appeals when it passed the Prison Litigation Reform Act in 1996. An inmate may not file any
lawsuits or appeals in forma pauperis if he has three or more lawsuits or appeals previously
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dismissed as “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.” 28 U.S.C. § 1915(g).
Magistrate Judge Mitchell found that Mr. Walker had more than three lawsuits dismissed as
frivolous prior to the filing of the present lawsuit. She further found that his complaint about not
receiving his medication on August 18, 2015 and September 3, 2015 does not give rise to an
inference that he was under imminent danger of serious physical injury at the time he filed the
lawsuit on November 4, 2016. This is particularly true since the prison system reassigned him to
a job in a different part of the Coffield Unit on September 11, 2015. Judge Mitchell concluded
that Mr. Walker’s in forma pauperis status should be revoked pursuant to § 1915(g).
Objections
Mr. Walker has filed objections. He argues that Congress never intended § 1915(g) to
deprive inmates of their right of access to the courts. The Fifth Circuit considered the identical
argument in Carson v. Johnson, 112 F.3d 818 (5th Cir. 1997). The Court held that the statute
does not prevent a prisoner from filing civil lawsuits; instead, “it merely prohibits him from
enjoying IFP status. He still has the right to file suits if he pays the full filing fees in advance,
just like everyone else.” Id. at 821. Mr. Walker’s first objection lacks merit.
Mr. Walker next argues that his factual allegations were misinterpreted. He asserts that
he was denied his medication eight times from August 18, 2015 through September 3, 2015. The
dispositive factor with respect to the exception to § 1915(g) is whether Mr. Walker was “under
imminent danger of serious physical injury” at the time he filed the lawsuit. See Banos v. O’Guin,
144 F.3d 883, 884-85 (5th Cir. 1998). Mr. Walker stresses that he is HIV+, which is a serious
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medical condition. The issue before the court is not, however, whether he has a serious medical
condition. Instead, the issue for purposes of the exception to § 1915(g) is whether he was under
imminent danger of serious physical injury at the time he filed the lawsuit.

His lawsuit

involves allegations of being denied medication for his condition from August 18, 2015 through
September 3, 2015. He was reassigned to work on a different part of the unit on September 11,
2015. On September 23, 2015, he admitted to medical personnel that he “was having issues for
a while but it is ok.” These facts do not show that he was under imminent danger of serious
physical injury at the time he filed the lawsuit on November 4, 2016. He mentions grievances
about being denied medication starting on January 25, 2017, but he has not shown that he was
under imminent danger of serious physical injury at the time he filed the lawsuit. Mr. Walker’s
objections lack merit.
Conclusion
Congress enacted § 1915(g) to end the practice by inmates of repeatedly filing frivolous
lawsuits. Mr. Walker had at least three strikes at the time he filed the present lawsuit. He has
exceeded the limit allowed by Congress. He has not shown that the exception to § 1915(g)
applies; thus, he is not entitled to proceed in forma pauperis. Defendants’ motion to revoke his
in forma pauperis status should be granted.
The Report of the Magistrate Judge, which contains her proposed findings of fact and
recommendations for the disposition of such action, has been presented for consideration.
Having made a de novo review of the objections raised by Mr. Walker to the Report, the court
is of the opinion that the findings and conclusions of the Magistrate Judge are correct, and

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Mr. Walker’s objections are without merit. Therefore, the court adopts the findings and
conclusions of the Magistrate Judge as the findings and conclusions of the court. It is
accordingly
ORDERED that the complaint is DISMISSED with prejudice for purposes of in forma
pauperis proceedings pursuant to 28 U.S.C. § 1915(g). It is further
ORDERED that Defendants’ motion to revoke Mr. Walker’s in forma pauperis status
(Dkt. #43) is GRANTED and Mr. Walker’s in forma pauperis status is REVOKED. Mr. Walker
may resume his lawsuit if he pays the entire filing fee of $400 within thirty days after the entry of
the final judgment. It is finally
ORDERED that all motions not previously ruled on are DENIED.

So ORDERED and SIGNED this 16th day of April, 2017.

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