White v. Director

Filing 14

ORDERED that the complaint is dismissed with prejudice for purposes of in forma pauperis proceedings pursuant to the 1915(g) bar imposed by the Fifth Circuit. Ordered that the 2 motion to proceed in forma pauperis is denied. Mr. White may resume the lawsuit if he pays the entire filing fee of $400 within thirty days from 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

ANTHONY WAYNE WHITE, #541668

'

VS.

'

LORIE DAVIS

'

CIVIL ACTION NO. 6:17cv83

ORDER OF DISMISSAL
Plaintiff Anthony Wayne White, an inmate confined at the Coffield Unit of the Texas
prison system, proceeding pro se and seeking to proceed in forma pauperis, filed the above-styled
and numbered civil action. The lawsuit was referred to United States Magistrate Judge John D.
Love, who issued a Report and Recommendation (Dkt. #5) concluding that the lawsuit should be
construed as a civil rights case and dismissed for purposes of in forma pauperis proceedings
because of sanctions imposed by the United States Court of Appeals for the Fifth Circuit pursuant
to 28 U.S.C. § 1915(g). Mr. White has filed objections (Dkt. #10).
Mr. White argues that he has a federally protected right to bring a claim under the First
Amendment. He further argues that he has a right to bring a petition for a writ of habeas corpus
challenging unconstitutional conditions of confinement.
Pursuant to 28 U.S.C. § 1915(g), the Fifth Circuit barred Mr. White from filing any new
proceedings in forma pauperis in a district court or on appeal while he remains in prison, unless
he is under imminent danger of serious physical injury. White v. Holston, No. 97-40773, 1998

1

WL 224524 (5th Cir. Apr. 16, 1998). Mr. White is attempting to circumvent the bar by filing the
present lawsuit as a petition for a writ of habeas corpus.
The Fifth Circuit dealt with an identical case in Carson v. Johnson, 112 F.3d 818 (5th Cir.
1997). As in the present case, Mr. Carson endeavored to file a civil rights lawsuit as a petition
for a writ of habeas corpus. The Fifth Circuit held that § 1983 lawsuits “are the proper vehicle to
attack unconstitutional conditions of confinement” while a “habeas petition, on the other hand, is
the proper vehicle to seek release from custody.” Id. at 820 (citations omitted). The Court held
that the trial court properly characterized the case as a civil rights lawsuit. Id. The Court further
held that the dismissal of the lawsuit pursuant to § 1915(g) was proper. Id. at 822-23. Finally,
the Fifth Circuit made the following observation with respect to the claim that he had a
constitutional right to bring the lawsuit:
Section 1915(g) does not prevent a prisoner with three strikes from filing civil
actions; 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. White’s objections to the recommendation to dismiss the lawsuit for purposes of
in forma pauperis proceedings pursuant to § 1915(g) lack merit. He may resume the case if he
pays the full filing fee of $400 within thirty days after the entry of the final judgment. Id. at 823.
The Report of the Magistrate Judge, which contains his proposed findings of fact and
recommendations for the disposition of such action, has been presented for consideration, and
having made a de novo review of the objections raised by Mr. White to the Report, the court is of
the opinion that the findings and conclusions of the Magistrate Judge are correct, and Mr. White’s
objections are without merit. It is therefore

2

ORDERED that the complaint is DISMISSED with prejudice for purposes of in forma
pauperis proceedings pursuant to the § 1915(g) bar imposed by the Fifth Circuit. It is further
ORDERED that the motion to proceed in forma pauperis (Dkt. #2) is DENIED. Mr.
White may resume the lawsuit if he pays the entire filing fee of $400 within thirty days from the
entry of the final judgment. It is finally
ORDERED that all motions not previously ruled on are DENIED.

So Ordered and Signed
Apr 16, 2017

3