Moore v. Davis et al

Filing 26

MEMORANDUM ORDER adopting 7 Report and Recommendation. Ordered that the Plaintiff's 2 motion for leave to proceed IFP is denied. Ordered that the above-styled civil action is dismissed with prejudice as to the re-filing of another IFP laws uit raising the same claims as herein presented, but without prejudice to the re-filing of this lawsuit without seeking IFP status and upon payment of the statutory $400.00 filing fee. Ordered that should the Plaintiff pay the full filing fee w ithin 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. Ordered that any and all motions which may be pending in this action are hereby denied. Signed by Judge Ron Clark on 5/17/2017. (bjc, )

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

§

v.

§

LORIE DAVIS, ET AL.

§

CIVIL ACTION NO. 6:16cv1266

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Plaintiff Michael Moore, 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, Moore named TDCJ-CID Director Lorie Davis; Beto I
Unit property officer Sherri St. Pe; TDCJ-CID Chaplaincy Director Vance Drum; Beto I Assistant
Warden Jimmy Bowman; Beto I Senior Warden Norris Jackson; unit grievance investigator Leann
Irons; unit grievance investigator Christy Hoisington; assistant regional director C. Martinez; and
Beto I Unit law library supervisor John Becraft.
I. The Plaintiff’s Claims and the Magistrate Judge’s Report
Moore complained that on May 9, 2016, Warden Jackson falsified a government document,
a Step One grievance concerning Moore, with intent to impede or obstruct the investigation of a
matter within the jurisdiction of a department or agency of the United States. That same day, Leann
Irons, Christy Hoisington, and John Becraft also falsified a government record, a Step One grievance
concerning Moore.
A month later, on June 8, 2016, regional director C. Martinez persuaded Leann Irons and
Christy Hoisington to make false statements about a use of force against Moore by an officer named
1

Jones, with intent to impede the investigation and hinder, delay or prevent communication to a law
enforcement officer or judge of the United States concerning the commission or possible
commission of a federal offense. This alleged use of force had occurred almost a year earlier, on
June 27, 2015. On June 30, 2016, Irons, Hoisington, and Becraft again falsified records denying a
grievance. This action resulted in a lawsuit by Moore being dismissed for failure to exhaust
administrative remedies.
On August 10, 2016, Moore contended that he went to the property room to get approved
religious items, but property officer St. Pe would not give him a package he received from Dar-esSalaam Publications. Moore argued this was retaliation by St. Pe, Warden Bowman, Vance Drum,
and Lorie Davis for a lawsuit which Moore had been part of almost 30 years earlier, relating to the
provision of religious services for Muslims. Moore maintained that the Defendants acted in bad
faith, which he claimed is a state law cause of action brought under the pendent jurisdiction of the
Court and which defeats qualified immunity. He sought declaratory and injunctive relief as well as
compensatory and punitive damages.
II. The Report of the Magistrate Judge
After review of the pleadings, the Magistrate Judge issued a Report recommending that
Moore’s lawsuit be dismissed. The Magistrate Judge observed that Moore has previously filed at
least three lawsuits or appeals which were dismissed as frivolous or for failure to state a claim upon
which relief may be granted, giving him three strikes within the meaning of 28 U.S.C. §1915(g).
See Moore v. Cockrell, et al., 273 F.3d 1103, 2001 U.S. App. LEXIS 30716, 2001 WL 1075975 (5th
Cir., August 23, 2001) (stating that Moore has three strikes). As a result, Moore is barred from
proceeding under the in forma pauperis statute unless he shows that he was in imminent danger of
serious physical injury as of the date of the filing of the lawsuit. Baños v. O'Guin, 144 F.3d 883, 885
(5th Cir. 1998).
The Magistrate Judge stated that in this regard, allegations of past harms do not suffice, but
the harm must be imminent or occurring at the time the complaint or notice of appeal is filed. The
2

exception refers to a genuine emergency where time is pressing. Because Moore did not show that
he was in imminent danger of serious physical injury as of the date of the filing of the lawsuit, the
Magistrate Judge recommended that Moore’s application for leave to proceed in forma pauperis be
denied and that Moore’s lawsuit be dismissed.
III. Moore’s Objections and Later Pleadings
A.Moore’s First Set of Objections
In his first set of objections, Moore complains first that he did not consent to having the
Magistrate Judge hear his case. The case was referred to the Magistrate Judge for pre-trial matters
and no consent is required for such a referral. Newsome v. EEOC, 301 F.3d 227, 230 (5th Cir.
2002). This objection is without merit.
Next, Moore asserts that he filed his lawsuit under the imminent danger exception, stating
that he was granted leave to proceed in forma pauperis in a lawsuit which he previously filed, styled
Moore v. Director, TDCJ-CID, et al., cause no. 6:15cv656 (E.D. Tex.). That case concerned the
alleged use of force by Officer Jones as well as officers named Fuge, Moore, and Lucas, none of
whom are named as defendants in the present lawsuit.
Furthermore, the original complaint in cause no. 6:15cv656 was postmarked on June 29,
2015, and the cover letter attached to the original complaint in the present case is dated November
1, 2016. Whether or not Moore was in imminent danger of serious physical injury in June of 2015
has no bearing on whether or not he was in imminent danger of serious physical injury in November
of 2016, a year and a half later. This objection is without merit.
Moore characterizes the Magistrate Judge’s Report as “thin to the point of pretext,”
speculating the Report is “acting as a cover, allowing the State to close its eyes to facts in an effort
to evade or avoid an obvious truth.” He states that “plaintiff Moore with no help of any kind for
checking the authority of government overseers is not just embedded with value, but it is exemplary
responding to the highest calling of the legal profession, which is to give meaning to the term equal
justice under law carved in stone on under every courthouse.” The Fifth Circuit has held that
3

§1915(g) does not violate a prisoner’s right of access to court or deprive litigants of equal protection.
Carson v. Johnson, 112 F.3d 818, 821-22 (5th Cir. 1997). Moore offers nothing to substantiate his
claim that the Report is “acting as a cover.” This objection is without merit.
After noting that pro se litigants should have their pleadings read with liberality, Moore
argues that his pleading shows imminent danger. He states that he “constantly lives in fear of being
assaulted by the Defendants,” even though he does not allege that any of the Defendants named in
this lawsuit ever assaulted him and he indicates that the alleged assault by Jones and the other
officers took place well over a year prior to the filing of the current lawsuit. Prisoners cannot
exempt themselves from the operation of §1915(g) by claiming they are in “imminent danger” at all
times and under all circumstances. Murphy v. Massenburge, civil action no. 6:16cv1006, 2017 U.S.
Dist. LEXIS 3091, 2017 WL 82550 (E.D.Tex., January 9, 2017); Calton v. Wright, civil action no.
6:12cv344, 2012 U.S. Dist. LEXIS 107329, 2012 WL 3135682 (E.D. Tex., June 29, 2012), Report
adopted at 2012 U.S. Dist. LEXIS 107324, 2012 WL 3135675 (E.D.Tex., August 1, 2012, appeal
dismissed), citing Abdul-Akbar v. McKelvie, 239 F.3d 307, 315 (3rd Cir. 2001). This objection is
without merit.
Next, Moore asserts that prisoners do not incur a strike under §1915(g) unless the entire
lawsuit is dismissed as frivolous, malicious, or for failure to state a claim, according to the Seventh
Circuit in Turley v. Goetz, 625 F.3d 1005 (7th Cir. 2010). Regardless of the Seventh Circuit’s
definitions of strikes, the Fifth Circuit has specifically held that Moore has three strikes and is
therefore covered by §1915(g). This objection is without merit.
B.Moore’s Second Set of Objections
In his second set of objections, Moore contends that he has set out allegations of past attacks
by an unnamed officer, allegations of threats made by other officers, and a claim for damages for
the physical harm posed to Moore by other officers. He states that his complaint provided
allegations of imminent danger experienced at the time the original incident took place on June 27,
2015, when officers Fuge, Moore, Jones, and Lucas assaulted him without provocation.
4

The Fifth Circuit has expressly rejected the theory that the “imminent danger” is determined
at the time of the alleged incident rather than the time of the filing of the complaint or appeal.
Baños, 144 F.3d at 885; see also King v. Livingston, 212 F.App’x 260, 262, 2006 U.S. App. LEXIS
30383, 2006 WL 3627075 (5th Cir., December 11, 2006) (allegations of past attacks by inmates and
prison officials allegedly occurring six weeks before the complaint was filed were insufficient to
establish imminent danger). In Abdul-Akbar, the Third Circuit held that allegations of having been
sprayed with pepper spray, combined with a claim that prison officials engaged in “continuing
harassment, plots to hurt or kill him, and other forms of retaliation,” failed to sufficiently allege
imminent danger.
Moore cannot plausibly allege that an alleged use of force incident in June of 2015 placed
him in imminent danger as of the time he filed this lawsuit in November of 2016, particularly in light
of the fact that he did not sue any of the individuals he claims were involved in this incident. The
Fifth Circuit has held that the allegation of imminent danger must relate to the claims forming the
basis of the complaint. Judd v. Federal Election Commission, 311 F.App’x 730, 2009 U.S. App.
LEXIS 3464, 2009 WL 423966 (5th Cir., February 20, 2009). This objection is without merit.
C.Moore’s Motion for Leave to Amend
Moore filed a motion for leave to amend his complaint on April 24, 2017. The proposed
amended complaint repeats his claims against the named Defendants in the present lawsuit and adds
his claims against Fuge, Moore, Jones, and Lucas for the alleged assault on June 27, 2015. None
of the allegations in the proposed amended complaint are sufficient to show that Moore was in
imminent danger of serious physical injury as of the filing of his original complaint or the filing of
the proposed amended complaint. See Fuller v. Wilcox, 288 F.App’x 509, 2008 U.S. App. LEXIS
16581, 2008 WL 2961388 (10th Cir., August 4, 2008), citing Martin v. Shelton, 319 F.3d 1048, 1050
(8th Cir. 2003); Hyder v. Obama, civil action no. 5:11cv26, 2011 U.S. Dist. LEXIS 31288, 2011 WL
1113496 (E.D.Tex., March 24, 2011). Because Moore has failed to make such a showing, his
lawsuit may be dismissed without an evidentiary hearing or appointment of counsel. See, e.g.,
5

Butler v. Williams, 476 F.App’x 300, 2012 U.S. App. LEXIS 6152, 2012 WL 987562 (5th Cir.,
March 26, 2012) (affirming sua sponte dismissal of complaint under §1915(g) without a hearing or
appointment of counsel, and denying appointment of counsel on appeal).
IV. Conclusion
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
ORDERED that the Plaintiff’s objections are overruled and the Report of the Magistrate
Judge (docket no. 7) is ADOPTED as the opinion of the District Court. It is further
ORDERED that the Plaintiff’s motion 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.

So ORDERED and SIGNED this 17 day of May, 2017.

___________________________________
Ron Clark, United States District Judge

6