Garza v. Herbst et al

Filing 13

ORDER. More Definite Statement due by 5/26/2017(Signed by Magistrate Judge Jason B Libby) Parties notified.(mserpa, 2)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
JOSE FIDENCIO GARZA,
Plaintiff,
VS.
JENNIFER HERBST, et al,
Defendants.

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May 11, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. 2:17-CV-105

ORDER
Plaintiff Jose Fidencio Garza, a Texas inmate appearing pro se and in forma
pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff was
previously informed his complaint does not allege sufficient facts to allow the
undersigned to evaluate his claim.

Further, Plaintiff refused to attend or otherwise

participate in the April 17, 2017 hearing in this case. (D.E. 11). Therefore, Plaintiff was
ordered to submit a more definite statement of the facts involved in this action using a
specific format on or before May 1, 2017. (D.E. 11). While Plaintiff filed a response to
this Order on May 5, 2017, he did not file a more definite statement as directed. (D.E.
12).
Further, Plaintiff moves for the undersigned’s recusal. This Motion is DENIED.
Plaintiff’s argument is without merit as Plaintiff has failed to demonstrate how the
undersigned’s “impartiality might reasonably be questioned” such that “a well-informed
thoughtful and objective observer would question” his impartiality or that the
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undersigned has a bias stemming from a personal or extrajudicial source.

28 U.S.C. §

455; Sieber Calicutt v. Sphere Drake Ins. Co., 227 F.Supp.2d 623, 625-26 (E.D. Tex.
2002)(citations omitted).
Again, in order to allow the Court to properly evaluate the merits of this case,
Plaintiff is hereby ORDERED to submit a more definite statement of the facts involved
in this action by filing a written response to the questions posed below on or before May
26, 2017. Plaintiff shall follow the format as directed. It is insufficient for Plaintiff
to refer back to his complaint instead of answering each of the questions as ordered.
INSTRUCTIONS
Plaintiff is ORDERED to answer the following questions or directives for each
Defendant he seeks to raise in this lawsuit:
Defendant’s name: _________________________________________________.
1. Explain what this defendant did to violate your rights.
2. Give the specific facts that support the claim.
3. When did this happen?
4. Where did this happen?
5. Explain how you were harmed or injured by this defendant or this defendant’s
actions.
6. Is this defendant sued in his individual capacity, official capacity or both?
7. What damages are you seeking from this defendant?

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CONCLUDING INSTRUCTIONS
Plaintiff is instructed to label his response “Plaintiff’s More Definite Statement”
and to include the correct Civil Action Number as shown above in the style of this case.
Plaintiff is instructed to submit the responses to the questions by copying each question
as posed by the Court and then writing the answer as neatly as possible underneath each
question in numbered paragraphs corresponding to the question being answered. Plaintiff
is directed to answer the questions to the best of his ability based on personal knowledge
and the information available to him. He is further advised that legal research is not
required.
WARNING TO PLAINTIFF
Plaintiff is again cautioned that the Court will not consider any claim against any
defendant who is not listed in “Plaintiff’s More Definite Statement.” Plaintiff is
cautioned that his complaint is currently deficient for failure to state a claim and/or as
frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1). Failure to comply
with this Order may result in the dismissal of this action.
Plaintiff is further cautioned again that prisoner civil rights actions are subject to
the provisions of the Prison Litigation Reform Act, 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); Baños v. O’Guin, 144
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F.3d 883, 884 (5th Cir. 1998) (per curiam); 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.
28 U.S.C. § 1915(g); Baños, 144 F.3d at 884.
Plaintiff received his first strike in Garza v. Currie, Case No. 2:15-cv-155 (S.D.
Tex. filed Apr. 2, 2015). Additionally, the undersigned recommended Plaintiff receive a
second strike in Garza v. McConnell, Case No. 2:16-cv-255 (S.D. Tex. filed June 13,
2016). Plaintiff is WARNED that if he accumulates a third strike, he will not be
allowed to proceed in forma pauperis in any civil action or appeal filed while he is
incarcerated or detained in any facility unless he is under imminent danger of serious
injury. See § 1915(g).
ORDERED this 11th day of May, 2017.
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Jason B. Libby
United States Magistrate Judge

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