Lee v. Rogers et al

Filing 13

ORDER adopting 8 Report and Recommendation. Ordered that the Plaintiff's application for leave to proceed in forma pauperis is denied and the above-styled civil action is dismissed with prejudice as to the refilling of another in forma pauper is lawsuit raising the same claims as herein presented, but without prejudice to the refilling of this lawsuit without seeking in forma pauperis status and upon payment of the statutory filing fee. Ordered that should the Plaintiff pay the full filin g 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. Because Lee is ineligible to proceed in forma pauperis, the full filing fee is $400.00. Ordered that any and all motions which may be pending in this action are hereby denied. Signed by Judge Ron Clark on 5/14/2017. (bjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
WENDELL A. LEE #399488
(aka David C. Little-Hawk

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v.

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CAPTAIN THOMAS ROGERS, ET AL.

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CIVIL ACTION NO. 6:16cv1378

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Plaintiff Wendell Lee, also known as David C. Little Hawk, a prisoner of the Texas
Department of Criminal Justice, Correctional Institutions Division 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.
Lee alleges sexual assaults by unknown prison officials at the Skyview Unit, a TDCJ
psychiatric facility, in December of 2015 and again in November of 2016. He concedes that he was
sanctioned for abuse of the judicial process in 1991, but claims that his wife took care of the sanction
in the amount of $100.00.
Lee also filed a separate motion for leave to file his lawsuit, as he is required to do because
of the sanctions. In this motion, he states that he has not filed any civil actions in this Court since
around 1991 and contends that his life is continually being threatened.
The Magistrate Judge observed that according to court records, Lee was sanctioned in 1989
by a requirement that he obtain permission to file any new civil action. He also received a sanction
in the amount of $35.00 from this Court in a different case around the same time. In 1995, Lee was
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sanctioned $100.00 by the Fifth Circuit Court of Appeals. Little Hawk v. Scott, slip op. no. 9540349 (5th Cir., December 20, 1995). Despite Lee’s contention that his wife took care of the Fifth
Circuit sanction, court records show that neither of these monetary sanctions have been satisfied.
Although Lee claimed he has not filed any civil actions in this Court since 1991, the
Magistrate Judge observed that Lee filed five lawsuits in the Eastern District of Texas between 1993
and 1995, as well as two more (including the present one) since 2016. Of the five lawsuits filed
between 1993 and 1995, two were dismissed as frivolous and the appeal of a third was also
dismissed as frivolous. The Magistrate Judge therefore concluded that Lee’s lawsuit was barred by
his non-payment of sanctions as well as by the three-strike provision of 28 U.S.C. §1915(g).
Lee received a copy of the Magistrate Judge’s Report but filed no objections thereto;
accordingly, he is barred from de novo review by the District Judge of those findings, conclusions,
and recommendations and, except upon grounds of plain error, from appellate review of the
unobjected-to factual findings and legal conclusions accepted and adopted by the district court.
Douglass v. United Services Automobile Association, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).
The Court has reviewed the pleadings in this cause and the Report of the Magistrate Judge.
Upon such review, the Court has determined the Report of the Magistrate Judge is correct. See
United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.), cert. denied, 492 U.S. 918, 109 S.Ct. 3243
(1989) (where no objections to a Magistrate Judge’s Report are filed, the standard of review is
“clearly erroneous, abuse of discretion and contrary to law.”). It is accordingly
ORDERED that the Report of the Magistrate Judge (docket no. 8) 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 is
DENIED and 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 filing fee. It is further
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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. Because Lee is ineligible to proceed in forma pauperis, the full
filing fee is $400.00. Payment of the full filing fee will not affect a frivolousness analysis, nor
would it eliminate the requirement that Lee satisfy all of the sanctions imposed on him. It is further
ORDERED that the Clerk shall send a copy of this Memorandum Opinion to the
Administrator of the Three Strikes List for the Eastern District of Texas. Finally, it is
ORDERED that any and all motions which may be pending in this action are hereby
DENIED.

So ORDERED and SIGNED this 14 day of May, 2017.

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Ron Clark, United States District Judge

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