Parker v. Curry et al

Filing 9

MEMORANDUM OPINION regarding Plaintiff's claims. Signed by Magistrate Judge Zack Hawthorn on 10/27/2014. (bjc)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
JOE PARKER

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VS.

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GARY CURRY, ET AL.

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CIVIL ACTION NO. 9:14cv116

MEMORANDUM OPINION
Plaintiff Joe Parker, an inmate confined at the Estham Unit of the Texas Department of
Criminal Justice, Correctional Institutions Division, proceeding pro se, filed this civil action
pursuant to 42 U.S. C. § 1983 against Gary Curry, S.D. Allen and Amanda Phillips. Plaintiff seeks
leave to proceed in forma pauperis in this matter.1
Discussion
Title 28 U.S.C. § 1915(g) prohibits prisoners from repeatedly filing frivolous or malicious
complaints on an in forma pauperis basis, as well as complaints that fail to state a claim upon which
relief may be granted. Section 1915(g) provides as follows:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action
[in forma pauperis]... if the prisoner has, on three or more occasions ... brought
an action or appeal in a court of the United States that was dismissed on the grounds
that it is frivolous, malicious or fails to state a claim upon which relief may be granted,
unless the prisoner is under imminent danger of serious physical injury.
Prior to the date on which he filed this lawsuit, at least three lawsuits filed by plaintiff were
dismissed as frivolous or for failure to state a claim upon which relief may be granted.2 As a result,
Section 1915(g) is applicable.

1

This case was directly assigned to the undersigned magistrate judge pursuant to this district’s General
Order 14-10. Plaintiff has provided voluntary written consent to have the assigned magistrate judge conduct all
further proceedings in this case, including trial and entry of final judgment in accordance with 28 U.S.C. § 636. The
defendants in this action have not been served; thus, they are not parties to the action at this time. As a result, their
consent is not needed for the undersigned to make a final determination in this matter. See Neals v. Norwood, 59
F.3d 530, 532 (5th Cir. 1995).
2

Parker v. Taylor, No. 6:96cv1012 (E.D. Tex. Mar. 21, 1997) (dismissed as frivolous); Parker v. Unknown
Party, No. 4:00cv3240 (S.D. Tex. Oct. 25, 2000) (dismissed as frivolous); Parker v. Darmofal, No. 9:08cv167, No.
9:08cv169 (E.D. Tex. Oct. 14, 2008) (dismissed as frivolous and for failure to state a claim).

Plaintiff alleges he was improperly convicted of a prison disciplinary offense and has been
retaliated against. The allegations set forth in plaintiff's complaint do not demonstrate that he is in
"imminent danger of serious physical injury." Section 1915(g) therefore bars plaintiff from
proceeding further with this lawsuit on an in forma pauperis basis. This lawsuit should therefore
be dismissed.
Conclusion
For the reasons set forth above, this lawsuit will be dismissed without prejudice pursuant to
28 U.S.C. § 1915(g). An appropriate final judgment shall be entered.
SIGNED this 27th day of October, 2014.

_________________________
Zack Hawthorn
United States Magistrate Judge

2