Minnfee v. Thompson et al

Filing 10

ORDER OF DISMISSAL (Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, 2)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
BARRY DWAYNE MINNFEE,
Plaintiff,
VS.
JAMES THOMPSON, et al,
Defendants.

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§ CIVIL ACTION NO. 2:14-CV-147
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ORDER OF DISMISSAL
Plaintiff is a prisoner in the Texas Department of Criminal Justice, Criminal
Institutions Divisions (“TDCJ-CID”), and is currently confined at the McConnell Unit in
Beeville, Texas. He filed this § 1983 prisoner civil rights action on January 12, 2014, in
the Laredo Division of the United States District Court for the Southern District of Texas.
(See D.E. 1). On April 8, 2014, the Laredo district court transferred the action to this
Court. (D.E. 5).
In his original complaint, Plaintiff alleges that on February 14, 2013, certain
McConnell Unit officers and officials tried to “set him up” by planting a shank on him,
and that certain federal government employees are also involved in this conspiracy to
harm him and keep him incarcerated. (D.E. 1, p. 3). Plaintiff did not pay the $400.00
civil filing fee, nor has he sought leave to proceed in forma pauperis (“i.f.p.”).
Moreover, Plaintiff is a three strikes litigant as that term is defined in 28 U.S.C. §
1915(g), and as such, he has lost the privilege of proceeding i.f.p. unless he is “under
imminent danger of serious physical injury.” See 28 U.S.C. § 1915(g).
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I.

Jurisdiction.
The Court has federal question jurisdiction over this action. See 28 U.S.C.

§ 1331.
II.

Three strikes rule.
Prisoner civil rights actions are subject to the provisions of the Prison Litigation

Reform Act (“PLRA”), including the three strikes rule, 28 U.S.C. § 1915(g). The three
strikes rule provides that a prisoner who has had, while incarcerated, three or more
actions or appeals dismissed as frivolous, malicious, or for failure to state a claim upon
which relief can be granted is prohibited from bringing any more actions or appeals in
forma pauperis. 28 U.S.C. § 1915(g); Banos v. O’Guin, 144 F.3d 883, 884 (5th Cir.
1998); Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). The three strikes rule
provides an exception permitting prisoners who are under imminent danger of physical
harm to proceed without prepayment of the filing fee. Id.
III.

Plaintiff’s litigation history.
Plaintiff has had at least five prior actions dismissed as frivolous, malicious, or for

failure to state a claim upon which relief can be granted.1 In the Northern District of
Texas, Amarillo Division, Plaintiff acquired his first three strikes: See Minnfee v. Swart,
et al., Case No. 2:96-cv-274 (N.D. Tex. May 26, 1999) (dismissed for failure to state a
claim) (first strike); Minnfee v. Keeling, Case No. 2:96-cv-235 (N.D. Tex. May 2, 1997)

1

See http://156.124.4.123/ThreeStrikes/m3.htm for a partial list of Minnfee’s actions that have
been dismissed as frivolous and/or for failure to state a claim, or as barred by §1915(g), or for
failure to pay sanctions.
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(dismissed as frivolous) (second strike); and Minnfee v. Slaughter, Case No. 2:02-cv-242
(N.D. Tex. Sep. 9, 2002) (dismissed as frivolous) (third strike).2 Thereafter, Plaintiff
quickly obtained a strike in the Abilene Division: Minnfee v. Robertson Unit, et al., Case
No. 2:03-cv-023 (N.D. Tex. Feb. 6, 2003) (dismissed and no imminent danger) (fourth
strike). A few months later, Plaintiff’s action filed in the San Antonio Division of the
Western District of Texas was dismissed pursuant to the three strikes bar: Minnfee v.
Coutee, et al., Case No. 5:03-cv-35 (W.D. Tex. Apr. 28, 2003) (dismissed as frivolous)
(fifth strike). Later that year, in Minnfee v. Simpson, Case No. 2:03-cv-250 (N.D. Tex.
Dec. 9, 2003), the Amarillo district court imposed a $200.00 sanction and noted that
Plaintiff was barred from any new filings until he had satisfied the monetary sanction and
secured permission to file.
Shortly thereafter, Plaintiff was denied leave to file and/or had three actions
dismissed in succession in the Southern District of Texas, Houston Division, based on his
three strikes status and his failure to demonstrate imminent danger of physical harm. See
Minnfee v. Blackburn, Case No. 4:03-cv-4676 (S.D. Tex. Feb. 4, 2004); Minnfee v.
Cockrell, Case No. 4:03-cv-3354 (S.D. Tex. Feb. 4, 2004); and Minnfee v. Janicek, et al.,
Case No. 4:04-cv-2499 (S.D. Tex. Jul. 12, 2004). Later that year, in a habeas corpus
action, Minnfee v. Dretke, Case No. 2:02-cv-310 (N.D. Tex. Sep. 15, 2004), the Amarillo
district court imposed a $25.00 sanction against Plaintiff and specifically barred him from
filing any future motions in that proceeding. Id. at D.E. 112. Indeed, the Clerk of the

2

Plaintiff’s last name has been spelled “Minnafee” and “Minnifee” in other court proceedings.
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Court was ordered to return unfiled any subsequent pleading submitted by Plaintiff unless
instructed otherwise by a reviewing judge.3 Id.
Plaintiff continued to have difficulty in the Northern District of Texas. See
Minnfee v. Dretke, Case No. 2:04-cv-147 (N.D. Tex. Mar. 7, 2005) (sanctioned $25.00
and barred until all pending sanctions paid); Minnfee v. Emerson, et al., Case No. 5:05cv-067 (N.D. Tex. Mar, 25, 2005) (sanctioned $100 and Clerk of Court ordered to return
all pleadings except notice of appeal until sanctions paid); Minnfee v. Letson, et al., Case
No. 4:04-cv-348 (N.D. Tex. May 16, 2005) (dismissed based on three strikes bar).
On June 6, 2007, the Fifth Circuit issued a sanction and preclusion order against
Plaintiff in Minnfee v. Quarterman, No. 07-50446 (5th Cir. 2007), and imposed a $100
sanction. The Fifth Circuit specifically noted:
The Clerks of all Federal District Courts in this Circuit
are directed to refuse to accept further pleadings of any kind
from Minnfee, including notices of appeal, in previously filed
suits or any new suit, unless he provides proof that he has
paid the sanction. Even if Minnfee provides proof that he has
paid the sanction in full, he is warned that further frivolous
filings will invite the imposition of additional sanctions which
will include restrictions to his access to the Courts of this
Circuit.
Id.
On or about July 5, 2011, Plaintiff paid the $100 sanction to the Fifth Circuit, thus
satisfying the sanction order and rendering Plaintiff no longer precluded from filing
pleadings with this Court. See In re Minnfee, Case No. 4:11-mc-436 (D.E. 2). However,
the payment of the sanction did not remove Plaintiff from the three strikes list, and he
3

The docket reflects that on September 20, 2011, Plaintiff paid the $25.00 sanction.
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continued to accumulate strikes, as well as to be barred from filing, in this and other
courts. Specifically, in the Southern District of Texas, Corpus Christi Division, Plaintiff
has had four lawsuits dismissed in as many years. See Minnfee v. Haman, Case No. 2:11cv-168 (S.D. Tex. Jun. 1, 2011) (mixed habeas/§ 1983 petition identical to one dismissed
by Houston court and no imminent danger); Minnfee v. Thaler. et al. Case No. 2:12-cv100 (S.D. Tex. Apr. 10, 2012) (mixed habeas/§ 1983 petition fails to establish imminent
danger and Plaintiff is barred based on three strikes status); Minnfee v. Thaler, Case No.
2:12-cv-370 (S.D. Tex. Dec. 7, 2012) (no imminent danger to support consideration of
claims); and Minnfee v. Gonzalez, et al., Case No. 2:13-cv-159 (S.D. Tex. Aug. 9. 2013)
(dismissing § 1983 action based on three strikes and no imminent danger).
Despite Plaintiff’s payment of the $100.00 sanction ordered by the Fifth Circuit,
he remains a three strikes litigant and is barred from proceeding i.f.p. in a prisoner civil
rights action unless he is in “imminent danger of serious physical injury.” See 28 U.S.C.
§ 1915(g).
IV.

Analysis.
In the instant lawsuit, Plaintiff claims that Defendants are utilizing other offenders

to “entrap” him so that he will have to remain in prison longer. He claims that Captain
James Thompson and Sergeant Benjamin Morales have both told him that other inmates
“do not like him anyway,” and therefore, are easily recruited to assist Defendants in their
attempts to “entrap” him with false disciplinary cases. (D.E. 1, p. 3). He complains that
Debbie Ray, a member on the State Classification Committee (“SCC”) in Huntsville,
Texas, ignores his complaints and denies his requests for transfer. Id. Plaintiff alleges
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that FBI Agent Kevin Donnally tried to “set him up” by planting a shank or homemade
knife on him and that this was done with the approval of Mr. Drew Watts, the Assistant
Director of the FBI who is located in Washington, D.C. Id. Plaintiff also claims that the
U.S. Marshal Service in Victoria, Texas, is involved in attempts to set him up and to keep
him in prison. He claims that he is seeking “…prosecution against this unit” and to be
transferred off the McConnell Unit. Id.
Considering Plaintiff’s allegations in the light most favorable to him, his claims
fail to state that he is in imminent danger of serious physical harm. The courts have
stated that in order to meet the imminent danger requirement of § 1915(g), the threat must
be “real and proximate.”

Ciarpaglini v.Saini, 352 F.3d 328, 330 (7th Cir. 2003).

Allegations of past harm do not suffice; the harm must be imminent or occurring at the
time the complaint is filed, and the complaint must refer to a “genuine emergency” where
“time is pressing.” Heimermann v. Litscher, 337 F.3d 781, 782 (7th Cir. 2003). In
passing the statute, Congress intended a safety valve to prevent impending harms, not
those which had already occurred. Abdul-Akbar v. McKelvie, 239 F.3d 307, 315 (3d Cir.
2001). Here, Plaintiff is complaining of a knife that was allegedly planted on him in
February of 2013, over a year ago. Moreover, he does not suggest that the knife was used
to threaten him or that he has been threatened by any Defendant with physical harm. To
the contrary, he suggests that he is being “set up” to appear violent so as to remain in
prison longer. Even if true, these actions do not suggest any imminent physical threat of
danger to Plaintiff. There is no indication that Plaintiff is in any type of danger to excuse
him from the § 1915(g) three strikes bar.
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V.

Conclusion.
Plaintiff has lost the privilege of proceeding in forma pauperis and he has failed to

demonstrate that he is in imminent danger of physical harm. Accordingly, this lawsuit is
dismissed without prejudice, and all pending motions are denied as moot. Plaintiff may
move to reinstate this action within thirty (30) days of the date of entry of this Order, but
only if the $400.00 filing fee is paid simultaneously with the motion to reinstate. If no
such motion is received within said time frame, final judgment of dismissal shall be
entered at that time.

ORDERED this 12th day of May, 2014.

___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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