Holmes v. Davis et al

Filing 10

ORDERED that the complaint is dismissed with prejudice for purposes of in forma pauperis proceedings pursuant to 28 USC 1915(g). Ordered that Mr Holmes' 3 motion for proceed IFP is denied. Mr Holmes may resume the 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 5/17/2017. (bjc, )

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

ERIC-CANTRELL HOLMES, #786465

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VS.

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LORIE DAVIS, ET AL.

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CIVIL ACTION NO. 6:17v197

ORDER OF DISMISSAL
Plaintiff Eric-Cantrell Holmes, an inmate confined at the Michael Unit of the Texas prison
system, proceeding pro se and seeking to proceed in forma pauperis, brings this civil rights lawsuit
pursuant to 42 U.S.C. § 1983. The case was referred to United States Magistrate Judge K. Nicole
Mitchell, who issued a Report and Recommendation (Dkt. #8) concluding that the lawsuit should
be dismissed for purposes of in forma pauperis proceedings pursuant to the “three strikes”
provisions of 28 U.S.C. § 1915(g). Mr. Holmes has filed objections (Dkt. #9).
Mr. Holmes has a long history of filing frivolous lawsuits and appeals. The following
lawsuits and/or appeals were dismissed as frivolous before the filing of the present lawsuit:
Holmes v. Harris County Sheriff’s Dep’t, No. 99-20122 (5th Cir. June 16, 2000); Holmes v. City
of Houston, No. 99-20919 (5th Cir. April 14, 2000); Holmes v. Cockrell, 4:02cv3486 (S.D. Tex.
Oct. 1, 2002), appeal dismissed, 73 F. App’x 79 (5th Cir. June 24, 2003) (both the lawsuit and
appeal dismissed as frivolous). Because he has filed at least three lawsuits or appeals that were
dismissed as frivolous, malicious, or fails to state a claim upon which relief may be granted, he
may not proceed in forma pauperis unless he was under imminent danger of serious physical injury
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at the time he filed the lawsuit. 28 U.S.C. § 1915(g). In light of his history of frivolous litigation,
the Northern District of Texas recently dismissed a civil rights lawsuit filed by him pursuant to the
“three strikes” provisions of § 1915(g). Holmes v. Texas Tech University Health Science Center,
No. 2:16-CV-0260 (N.D. Tex. Dec. 7, 2016) (no appeal).
Mr. Holmes initially complains in his objections that his claims against some of the
Defendants were severed from the lawsuit and transferred to another court. The claims were
properly transferred because he complained about events that occurred at a unit in another division.
Venue was proper in the other court under 28 U.S.C. § 1391(b).
Nonetheless, regardless of whether the transfer order was appropriate, Mr. Holmes’ lawsuit
should be dismissed pursuant to the “three strikes” provisions of § 1915(g). He complains in his
objections that he suffers from two potentially fatal diseases, Peripheral Vascular Disease and
Hypothyroidism, but he has not shown that he was under imminent danger of serious physical
injury at the time he filed the lawsuit in order to trigger the exception to § 1915(g). The Northern
District of Texas came to the same conclusion in dismissing his medical claims in Holmes v. Texas
Tech University Health Science Center. It should be further noted that Mr. Holmes’ primary
complaint in this lawsuit concerns religious issues, and he has not shown that such claims should
not be dismissed for purposes of in forma pauperis proceedings pursuant to § 1915(g).
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, and
having made a de novo review of the objections raised by Mr. Holmes to the Report, the court is
of the opinion that the findings and conclusions of the Magistrate Judge are correct, and Mr.

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Holmes’ objections lack 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 Mr. Holmes’ motion to proceed in forma pauperis (Dkt. #3) is DENIED.
Mr. Holmes may resume the 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 17 day of May, 2017.

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Ron Clark, United States District Judge

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