Comeaux v. Broom et al

Filing 23

ORDER OF PARTIAL DISMISSAL: re: adopting 20 Report and Recommendation. It is therefore ordered that with the exception of plaintiff's claims of the August2010 and September 27, 2010 instances of serious physical abuse and threats to repeat su ch abuse by defendants Nash, Woodruff, Gariepy, Broom, and Clark, all of plaintiff's remaining claims be dismissed without prejudice to refiling with prepayment of the filing fee. Let Judgment be entered accordingly. (Ordered by Judge Mary Lou Robinson on 10/4/2012) (egb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
AMARILLO DIVISION

ARCADE JOSEPH COMEAUX, JR., PRO SE, $
TDCJ-CID # 841331
$
$

Plaintiff,

$
$

v.

$

2:l l-CV-00110

$

JARON BROOM, et al.,

$
9

Defendants.

$

ORDER OF PARTIAL DISMISSAL
Plaintiff ARCADE JOSEPH COMEAUX, JR., acting pro

in

se and

while

a prisoner confined

the Texas Department of Criminal Justices, Correctional Institutions Division, has filed suit

pursuant to Title 42,United States Code, section 1983 complaining against twenty-six defendants
employed by or otherwise associated with the Texas Department of Criminal Justice and has been
granted permission to proceed in forma pauperis.

On September 14,2012, a Report and Recommendation was issued by the United States
Magistrate Judge recommending that, with the exception of plaintiff s claims of the August 2010
and September 27 , 201 0 instances of serious physical abuse and threats to repeat such abuse by
defendants NASH, WOODRUFF, GARIEPY, BROOM, and CLARK, all of plaintifPs remaining

claims be dismissed without prejudice to refiling with prepayment of the filing fee.

Plaintiff filed his Objections on September 28,2012. By his Objections, plaintiff
challenges the Magistrate Judge's conclusion that the exception to the PLRA's three-strikes bar

contained in 28 U.S.C. $ 1915(g) did not extend to claims against additional defendants based on
actions which did not place him in imminent danger of serious physical injury at the time he filed

his lawsuit. Accord, McAlphinv. Toney,375 F.3d 753,755 (8th Cir. 2004) (an inmate's right to
proceed under the subsection (g) exception "must be limited to imminent danger claims that have
been properly exhaust"d."); Stine v. Federal Bureau of Prisons,No. 11-CV-00109-WJM-CBS,

2012 WL 882424, at * 1 1 (D. Colo. Feb. 10, 2012); contra, Andrews v. Cervantes, 493 F.3d 1047

(9th Cir. 2007). Nevertheless, allowing an inmate to attach additional claims about matters which
did not placed him in imminent danger of serious physical injury at the time he filed suit would
render the three-strikes provision meaningless and would defeat the clear purpose of the three-

strikes bar.

Plaintiff also vigorously argues, in part, that rape, assault, and obstruction of justice are not
a

condition of confinement. Plaintiff argues the Prison Litigation Reform Act applies only to

prisoner suits about conditions of confinement, such as overcrowding, heat, light, food, etc.

Plaintiff is wrong. The Prison Litigation Reform Act applies to every civil action or appeal in

a

civil action filed by a prisoner. 28 U.S.C. $ 1915(a)(2), (g).
Plaintiff argues the Magistrate Judge concluded plaintiff was presently denied visitors
because he had previously stabbed his

wife and the father of another prisoner during visitation in

1999. The Report and Recommendation shows the Magistrate Judge did not reach that
conclusion. He simply noted in passing that plaintiff had not explained why he had been denied

visiting privileges but that the previous stabbing was a possibility. In any event, the relevant
consideration was that plaintiff had not alleged any fact(s) showing the restriction on his

visitation, which plaintiff alleged was a product of racial animus, placed him in imminent danger
of serious physical injury.

Plaintiff complains that other claims concerning his food, his water, medical care, access
to legal materials, property confiscations, and mailroom problems, as well as other far less serious

claims, were dismissed; however, the facts plaintiff provided did not show they or any one

of

them placed him in imminent danger of serious physical injury at the time his complaint was filed.
The Court has made an independent examination of the records in this case and has
examined the Magistrate Judge's Report and Recommendation, as well as the Objections filed by
the plaintiff.

The Court is of the opinion that the objections of the plaintiff should be OVERRULED
and the Report and Recommendation of the United States Magistrate Judge should be ADOPTED

by the United States District Court.

This Court, therefore, does OVERRULE plaintiff s objections, and does hereby ADOPT
the Report and Recommendation of the United States Magistrate Judge.

IT IS THEREFORE ORDERED that with the exception of plaintifPs claims of the August
2010 and September 27,2010 instances of serious physical abuse and threats to repeat such abuse
by defendants NASH, WOODRUFF, GARIEPY, BROOM, and CLARK, all of plaintiffls
remaining claims be DISMISSED WITHOUT PREJUDICE TO REFILING WITH

PREPAYMENT OF THE FILING FEE.
LET JUDGMENT BE ENTERED ACCORDNGLY.
The Clerk shall send a copy of this order to plaintiff and to any attorney of record.

ORDERED. / ./
Signed this the
/"f

It is SO

day of octo

U

ber,20I2.