Clay v. Texas Department of Criminal Justice et al

Filing 9

ORDER adopting 4 Report and Recommendations, of the United States Magistrate Judge. Plaintiff's claims are DISMISSED with prejudice as to the refiling of another in forma pauperis lawsuit raising the same claims but without prejudice to the refiling of this lawsuit upon the satisfaction of three conditions. Signed by District Judge Jeremy D. Kernodle on 11/22/2024. (wea)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
THOMAS H. CLAY,
Plaintiff,
v.
TDCJ-CID, et al.,
Defendants.

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Case No. 6:23-cv-615-JDK-KNM

ORDER ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Plaintiff Thomas H. Clay, a Texas Department of Criminal Justice inmate
proceeding pro se, brings this civil rights lawsuit under 42 U.S.C. § 1983. The case
was referred to United States Magistrate Judge K. Nicole Mitchell pursuant to 28
U.S.C. § 636.
On December 26, 2023, Judge Mitchell issued a Report and Recommendation
finding that Plaintiff has accumulated at least three strikes under the Prison
Litigation Reform Act and recommending that the Court deny Plaintiff’s motion to
proceed in forma pauperis and dismiss this case with prejudice as to the refiling of
another in forma pauperis lawsuit raising the same claims but without prejudice to
the refiling of this lawsuit upon satisfaction of outstanding sanctions against him and
payment of the full filing fee. Docket No. 4. Plaintiff filed objections. Docket No. 8.
Where a party timely objects to the Report and Recommendation, the Court
reviews the objected-to findings and conclusions of the Magistrate Judge de novo. 28

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U.S.C. § 636(b)(1). In conducting a de novo review, the Court examines the entire
record and makes an independent assessment under the law. Douglass v. United
Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc), superseded on other
grounds by statute, 28 U.S.C. § 636(b)(1) (extending the time to file objections from
ten to fourteen days).
In his objections, Plaintiff argues that he is in “real and ongoing imminent
danger”—specifically, an alleged MRSA infection. Docket No. 8. But the Report
already considered and rejected these arguments. Docket No. 4 at 5. As the Report
explains, because Plaintiff is not in imminent danger as to the allegations of the
present complaint, his claim does not meet the requirements of 28 U.S.C. § 1915(g).1
Id. Plaintiff also challenges the § 1915(g) bar and the previous sanctions other courts
have imposed upon him. Docket No. 8. But binding Fifth Circuit precedent supports
these requirements. Plaintiff’s citations to decisions from the Second and Eleventh
Circuits are therefore unavailing.
Next, Plaintiff appears to argue that Eastern District of Texas General
Order 94-6’s requirement that this Court honor sanctions imposed by other district
courts somehow nullifies the imminent danger clause of § 1915(g) and creates a
“conflict of law” under the Rules Enabling Act, 28 U.S.C. § 2072. Plaintiff further
complains that the Court has imposed “a new rule of law” by imposing a blanket
denial of access to filing in federal court as to unpaid filing fees and sanctions, even
under the imminent danger clause. As stated above, the Fifth Circuit has affirmed

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The Court offers no opinion on any imminent danger claim Plaintiff may have concerning his current
confinement at the Estelle Unit.

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that Plaintiff has three strikes under § 1915(g) and has imposed its own sanctions
upon Plaintiff. The Fifth Circuit has also upheld the practice of honoring sanctions
imposed by other courts. Balawajder v. Scott, 160 F.3d 1066, 1068 (5th Cir. 1998).
Thus, no “new rule of law” was imposed by this Court in honoring the sanction
imposed by the Southern District.
Having conducted a de novo review of the record in this case and the
Magistrate Judge’s Report, the Court has determined that the Report of the
Magistrate Judge is correct, and Plaintiff’s objections are without merit. Accordingly,
the Court OVERRULES Plaintiff’s objections (Docket No. 8) and ADOPTS the
Report of the Magistrate Judge (Docket No. 4) as the opinion of the District Court.
Plaintiff’s claims are DISMISSED with prejudice as to the refiling of another in
forma pauperis lawsuit raising the same claims but without prejudice to the refiling
of this lawsuit upon the satisfaction of three conditions: (1) proof of satisfaction of the
Southern District of Texas’s $100.00 sanction; (2) receipt of written permission to file
a new lawsuit or proof of payment of the Fifth Circuit’s $100.00 sanction; and (3)
payment of the full filing fee in the newly refiled case or a showing that Plaintiff is in
imminent danger of serious physical injury relating to the allegations of the
complaint at the time of the filing of the new complaint.
So ORDERED and SIGNED this 22nd day of November, 2024.

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JEREMY D. KERNODLE
UNITED STATES DISTRICT JUDGE

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