Washington v. Leeah et al

Filing 18

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) (djs)

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FILFD
IN THE UNITED STA TES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
AMARILLO DIVISION
DAVID WASHINGTON,
TDCJ-CID No. 0765851,

V.

BENJAMIN LEEAH, et al. ,
Defendants.

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Plaintiff,

[ NOV 17 2022

2:22-CV- 170-Z-BR

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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. Plaintiff has
filed an application to proceed in forma pauperis (ECF No . 4) and has sought appointment of
counsel. (ECF Nos. 5, 7). 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 damaged his skin, took his off
his medications, and failed to follow policy, rules, and procedure. (ECF No. 3).
Plaintiff does not assert how the medical staffs 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 to be provided Benadryl twice a day ; to be paid $1 ,000,000.00 in

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damages; to see a dermatologist; to have his teeth cleaned "until they are snow white"; 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, I 03 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 if he 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. 0 '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 l 915(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 for ma pauper is 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. $ 191 S(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. § 191 S(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). 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

17 ,2022
MA HEW J. KACSMARYK
UN TED STATES DISTRICT JUDGE

1

Notably in response to the question on his complaint regarding whether he had been sanctioned, Washington stated
he could not remember. (ECF No. I). Washington is advised that he has been sanctioned multiple times and must
disclose this fact in the future.

3