Washington v. Leeah et al
Filing
17
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 to reopen within thirty days of the date of final judgment. (Ordered by Judge Matthew J. Kacsmaryk on 11/17/2022) (awc)
Case 2:22-cv-00159-Z-BR Document 17 Filed 11/17/22
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IN THE UNITED STATES DISTRICT COUR
FOR THE NORTHERN DISTRICT OF TEX
AMARILLO DIVISION
11.S. f)JSTRIC:l COIJRT
NORTI IERN rnsrn,cr OF TEXAS
FILED
[ NOV l 7 2frl2
DAVID WASHINGTON.
TDCJ-CID No. 0765851,
Plaintiff.
v.
BENJAMIN LEEAH, et al.,
Defendants.
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CLERK, U.S. DISTRICT COURT
By~"'7n;:;;;-;:;:-;---r111y
2:22-CV-159-Z-BR
MEMORANDUM OPINION
DISMISSING CIVIL RIGHTS COMPLAINT
This is a civil rights action brought by David Washington, a Texas inmate appearing pro
se, 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 Connally Unit of TDCJ in Kenedy,
Texas. Plaintiff has filed an application to proceed informa pauperis (ECF No. 4) and has sought
appointment of counsel. (ECF Nos.
s. 6). 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 of28 U.S.C. § 1915(g).
In support of his Complaint, Plaintiff presents the following allegations:
Plaintiff alleges medical staff at the Clements Unit failed to follow policy, rules,
and procedure relating to care provided after Plaintiff allegedly fell from his bunk.
(ECF No. 3). Plaintiff does not assert how the medical staff's actions result in
imminent danger. See id.
Based on the foregoing, Plaintiff purports to sue the following Defendants: Benjamin Leeah.
Doctor; Alan Sbar, Doctor; Melanie Hendrix, FNP; and Paul Burch, PA, all of the Clements Unit.
(Id.). As relief, Plaintiff seeks the following: to be prescribed Tramadol three times a day; to be
Case 2:22-cv-00159-Z-BR Document 17 Filed 11/17/22
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paid $1,000,000.00 in damages; to receive regular payments; to have "bad reports" removed from
his medical record; and to have an attorney appointed. (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. § 1915(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
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. §
1915(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, 103 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.
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While incarcerated, Plaintiff has filed at least three prior civil actions that were dismissed
as frivolous or for failure to state a claim. See, e.g., Washington v. Tupa, et al., No. 5:22-cv-00889
(W.D. Tex. Aug. 30, 2022) (noting Washington's history, which includes at least seven strikes,
and dismissing the civil action under 28 U.S.C. $ 1915(g)). Therefore, Washington may not file
another civil action IFP while incarcerated unless he is in "imminent danger of serious physical
injury." 1 28 U.S.C. § 1915(g).
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 conclusory allegations that several named
officers failed to take proper actions on an undisclosed date and time. 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. of Texas Med. Branch, et al., No. 16-cv-436,
2016 WL 3267346, at •2 (E.D. Tex. Jun. 15, 2016) (citations omitted). Plaintiff's allegations here
are general-not grounded in specific facts indicating serious physical injury is imminent and,
therefore, are not sufficient to invoke the exception to § 191 S(g). Lastly, while Plaintiff claims to
be incarcerated in the Bill Clements Unit ofTDCJ at the time of filing (ECF No. 3 at 1, 3), Plaintiff
submitted his Complaint from his current place of incarceration in the John B. Connally Unit.
(ECF No. 3 at 11 ). As a result, the Court finds that Plaintiff has not shown that he was in imminent
1 Notably
in response to the question on his complaint regarding whether he had been sanctioned, Washington stated
he could not remember. (ECF No. 1). Washington is advised that he has been sanctioned multiple times and must
disclose this fact in the future.
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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 Plaintiff's
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
_j_J_, 2022
MA
4
HEW J. K.ACSMARYK
TED STATES DISTRICT JUDGE
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