Coffman v. Delgado Hernandez et al

Filing 9

MEMORANDUM OPINION DISMISSING CIVIL RIGHTS COMPLAINT: The complaint filed by Plaintiff is DISMISSED as barred by the three strikes provision of 28 U.S.C. § 1915(g). This dismissal is without prejudice to Plaintiff's right to reopen the case if he pays the $402.00 filing and administrative fees and files a motion toreopen within thirty days of the date of final judgment. (Ordered by Judge Matthew J. Kacsmaryk on 11/17/2022) (awc)

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U.S. DISTRICT COURT
NORTI IERN DISTRICT OF TEXAS

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
AMARILLO DIVISION
DAN COFFMAN,
TDCJNo. 0788247,
Plaintiff,

v.
ANDRES HERNANDEZ, et al.,
Defendants.

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FILED

[Nov112022 f
CLERK, U.S. DISTRICT COURT
By-U.'lE;,~::---r111y

2:22-CV-0069-Z-BR

MEMORANDUM OPINION
DISMISSING CIVIL RIGHTS COMPLAINT
This is a civil rights action brought by Dan Coffman, a Texas inmate appearing prose,
against employees or agents of the Texas Department of Criminal Justice ("TDCJ") pursuant to 42
U.S.C. § 1983. Plaintiff is an inmate confined in the Clements Unit ofTDCJ at the time of filing.
Plaintiff has filed an application to proceed informa pauperis. (ECF Nos. 4, 5). Plaintiff has not
shown that at the time of the filing of this lawsuit, he was "under imminent danger of serious
physical injury." Therefore, this action is DISMISSED as barred by the three-strike provision of
28 u.s.c. § 1915(g).
In support of his Complaint, Plaintiff presents the following allegations:
TDCJ has violated his rights by using excessive force. (ECF No. 3 at 4). Plaintiff
does not assert how the prior use of force results in current imminent danger. See
id.
The PLRA, enacted into law on April 26, 1996, amended 28 U.S.C. § 1915 as it relates to
civil actions filed by prisoners in federal court. Among the changes effected by the PLRA was the
inclusion of 28 U .S.C. § 19 l 5(g), also known as the "three-strike" provision. Section 1915(g)
precludes a prisoner from bringing a civil action in forma pauperis if on three or more prior

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occasions, he filed civil actions or appeals in federal court which were dismissed, either by a
district court or appellate court, as being frivolous, malicious, or for failing to state a claim. See

Jackson v. Johnson, 475 F.3d 261, 265 (5th Cir. 2007). When a district court dismisses a case as
frivolous or for failure to state a claim, such a dismissal counts as a "strike" under 1915(g) once
the judgment becomes final. See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). A
district court's dismissal is final when the prisoner has exhausted avenues of appeal or has waived
any appellate rights. Id.
A prisoner is barred from proceeding informa pauperis ifhe is subject to the "three-strike"
provision "unless the prisoner is under imminent danger of serious physical injury." 28 U.S.C. §
l 915(g); see also Banos v. O'Guin, 144 F.3d 883,884 (5th Cir. 1998). The complaint must present
a claim that Plaintiff is in danger of imminent serious physical injury to overcome the bar. See

Carson v. Johnson, 112 F.3d 818, 822-823 (5th Cir. 1997). In applying the "three-strike" provision
of 191 S(g), a court may consider case dispositions that occurred prior to the effective date of the
PLRA. See Adepegba, l 03 F.3d at 387-88. A review of the Public Access to Court Electronic
Records ("PACER") and the Sanction Database reflects that Plaintiff has had at least three prior
actions dismissed with prejudice as frivolous or for failure to state a claim, as outlined herein; thus,
Plaintiff is barred from proceeding in forma pauperis as he requests.
Specifically, the Fifth Circuit Court of Appeals has recognized that Plaintiff is barred from
proceeding in forma pauperis based on the three-strikes provision of the PLRA. See Coffman v.

Unknown Defendants, No. 2:20-cv-68 (N.D. Tex. Feb. 2, 2021); see also Coffman v. Kluck, No.
15-51075 (5th Cir. 2015); Coffman v. Young, No. l:05-cv-135 (E.D. Tex. Aug. 9, 2006); Coffman
v. Fox, No. 6:02-cv-315 (E.D. Tex. Aug. 19, 2002); Coffman v. Thompson, No. 6:00-cv-730 (E.D.
Tex. Apr. 10, 2001).

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And here, Plaintiff has not alleged or shown that he was in imminent danger of serious
bodily injury when he filed his suit. Instead, he makes allegations concerning a past use of
excessive force. (ECF No. 3 at 4). It is well established that an allegation of past harm is
insufficient to satisfy the imminent-danger exception. King v. Liyingston, 212 F. App'x 260 (5th
Cir. 2006); see also McClure v. Unknown Duty Warden, No. 6:21-cv-193, 2021 WL3782917,*2
(S.D. Tex. June 8, 2021) (collecting cases). Further, "general allegations not grounded in specific
facts indicating serious physical injury is imminent are not sufficient to invoke the exception to §
1915(g)." Miller v. Univ. o/Texas Med Branch, et al., No. 16-cv-436, 2016 WL 3267346, at *2
(E.D. Tex. Jun. 15, 2016) (citations omitted). Plaintiffs allegations here are not sufficient to
invoke the exception to § 1915(g). As a result, the Court finds that Plaintiff has not shown that he
was in imminent danger of serious bodily injury when he filed this complaint, and he must pay the
full filing fee if he wishes to proceed.
For the above reasons, the complaint filed by Plaintiff is DISMISSED as barred by the
three strikes provision of 28 U.S.C. § 1915(g). This dismissal is without prejudice to Plaintiffs
right to reopen the case if he pays the $402.00 filing and administrative fees and files a motion to
reopen within thirty days of the date of final judgment.
SO ORDERED.

November_il_,2022
EW J. KACSMARYK
ITED STATES DISTRICT JUDGE

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