Elam v. Ituah et al

Filing 7

ORDER granting 6 Motion; denying as moot 2 Motion for Leave to Proceed in forma pauperis.(Signed by Judge George C Hanks, Jr) Parties notified. Copy to TDCJ Office of General Counsel and Inmate Trust Fund.(dperez, 3)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
DARIUS DURON ELAM,
TDCJ #00380190,
Plaintiff,
VS.
FOLASHADE ITUAH, et al.,
Defendants.

April 04, 2018
David J. Bradley, Clerk

§
§
§
§
§ CIVIL ACTION NO. 3:18-CV-27
§
§
§
§

ORDER GRANTING LEAVE
TO PROCEED IN FORMA PAUPERIS
The plaintiff, Darius Duron Elam (TDCJ #00380190), has filed a civil rights
complaint under 42 U.S.C. § 1983, concerning an incident that occurred while he was
incarcerated by the Texas Department of Criminal Justice – Correctional Institutions
Division (“TDCJ”) at the Darrington Unit. He has also filed more than one motion for
leave to proceed in forma pauperis (Dkts. 2, 6). This case is governed by the Prison
Litigation Reform Act (the “PLRA”), 28 U.S.C. § 1915(b), which requires prisoners to
pay an initial partial filing fee. The PLRA also requires prisoners to pay thereafter the
balance of the $350.00 filing fee for indigent litigants. Based on the certified inmate trust
account statement provided by the plaintiff, the Court ORDERS as follows:
1.

The plaintiff’s initial motion for leave to proceed in forma pauperis (Dkt.

2) is GRANTED. The plaintiff’s second motion for leave to proceed (Dkt. 6) is MOOT.

1

2.

The plaintiff is assessed an initial partial filing fee of $18.00. The agency

shall collect this amount from the inmate trust fund account belonging to the plaintiff and
forward it to the Clerk within thirty days of the date of this Order.
3.

Thereafter, the plaintiff shall pay the balance of the filing fee ($332.00) in

periodic installments as required by 28 U.S.C. § 1915(b). When funds are available, the
agency shall collect this amount from inmate trust fund account belonging to the plaintiff
and forward it to the Clerk.
4.

The plaintiff is responsible for signing all consents and other documents

required by the agency having custody of him to authorize the necessary withdrawal from
his inmate trust account.
5.

No requests for counsel will be considered and all discovery is stayed until

after the Court screens the complaint under 28 U.S.C. § 1915A, which requires the Court
to scrutinize the pleadings and dismiss the case if it is frivolous, malicious, fails to state a
claim upon which relief may be granted or seeks monetary damages from a defendant
who is immune from such relief. See also 28 U.S.C. § 1915(e)(2)(B).
6.

No amendments or supplements to the complaint will be filed without prior

Court approval. A complete amended complaint will be attached to any motion to
amend. Any pleadings or other papers filed in violation of these directives, including any
pleadings or other papers which contain any new claims or any new factual allegations
not already explicitly raised in: (1) the original complaint, (2) any court approved
amendments or supplements to the original complaint, or (3) in response to an Order for
2

More Definite Statement, shall automatically be STRICKEN from the record without
further notice and will be of no force or effect in this lawsuit. Any pleadings or other
papers filed in violation of these directives in this paragraph may also subject the plaintiff
to other sanctions, including the dismissal of this suit for failure to comply with court
orders, if appropriate.
7.

The plaintiff must notify the court of any change of address by filing a

written notice of change of address with the Clerk. Failure to file such notice may result
in this case being dismissed for want of prosecution.
NOTICE TO THE PLAINTIFF:
A.

Payment of all or any part of the full filing fee will not prevent dismissal of

the complaint if it is frivolous or malicious, fails to state a claim upon which relief may
be granted, or seeks monetary relief from a defendant who is immune from such relief. If
the case is dismissed on any of those grounds before payment of the entire filing fee, the
plaintiff must still pay the entire filing fee. When a prisoner has had three or more prior
actions or appeals dismissed for being frivolous or malicious or failing to state a claim
upon which relief may be granted, federal law prohibits the prisoner from bringing any
more actions or appeals in forma pauperis unless the plaintiff is in imminent danger of
serious physical injury. See 28 U.S.C. § 1915(g).
B.

State law requires the forfeiture of good conduct time credits as a sanction

for any state or federal lawsuit brought by an inmate while in the custody of the Texas
Department of Criminal Justice, or confined in county jail awaiting transfer to TDCJ, that
3

is dismissed as frivolous or malicious. See TEX. GOV’T CODE ANN. § 498.0045. This
sanction extends to frivolous proceedings arising from an application for writ of habeas
corpus if brought for the purpose of abusing judicial resources. See id. § 498.0045(a).
The Clerk of Court will send a copy of this order to the plaintiff and will also
provide a copy of this order to (1) the TDCJ - Office of the General Counsel, Capitol
Station, P.O. Box 13084, Austin, Texas, 78711, Fax: [phone]; and (2) the Inmate
Trust Fund, P.O. Box 629, Huntsville, Texas 77342-0629, Fax: [phone].
SIGNED at Galveston, Texas, this 3rd day of April, 2018.
___________________________________
George C. Hanks Jr.
United States District Judge

4