Hicks v. TDCJ

Filing 3

MEMORANDUM OPINION AND ORDER denying request for leave to file a civil complaint in forma pauperis. Case terminated on 10/12/18(Signed by Judge George C Hanks, Jr) Parties notified.(dperez, 3)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
NORRIS HICKS,
TDCJ #00505593,

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Plaintiff,
VS.
TDCJ,
Defendant.

October 12, 2018
David J. Bradley, Clerk

MISC. ACTION NO. 3:18-MC-0014

MEMORANDUM OPINION AND ORDER
Norris Hicks, currently incarcerated in the Texas Department of Criminal Justice–
Correctional Institutions Division (“TDCJ”), initiated this miscellaneous action on
September 26, 2018. Hicks, who is barred from proceeding in forma pauperis under 28
U.S.C. § 1915(g), seeks the Court’s leave to file a civil complaint in forma pauperis and
alleges that he is in imminent danger. Having reviewed Hicks’ filing and attachments,
his litigation history, and all matters of record, the Court denies Hicks’ request for the
reasons explained below.
Under the “three strikes” rule found in the Prison Litigation Reform Act, a
prisoner is not allowed to bring a civil action in forma pauperis in federal court if, while
incarcerated, three or more of his civil actions or appeals were dismissed as frivolous,
malicious or for failure to state a claim upon which relief may be granted, unless he is
under “imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). Once a
prisoner has accumulated three qualifying dismissals or strikes for purposes of
Section 1915(g), he may not proceed without prepayment of the filing fee unless he fits
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within the “imminent danger” exception at the time his complaint is filed. See Banos v.
O’Guin, 144 F.3d 883, 885 (5th Cir. 1998); Adepegba v. Hammons, 103 F.3d 383, 385
(5th Cir. 1996).
Hicks has filed numerous previous lawsuits and has received at least nine
“strikes.” See, e.g., Hicks v. Brysch, 5:96-CV-1005 (W.D. Tex.); Hicks v. Polunsky,
6:99-CV-0491 (E.D. Tex.). Therefore, he may not proceed in forma pauperis absent a
showing of “imminent danger of serious physical injury.” 28 U.S.C. § 1915(g); Banos,
144 F.3d at 885.

The threat of imminent danger must be “real and proximate,”

Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003), and allegations regarding past
harms do not suffice. Banos, 144 F.3d at 885; see Abdul-Akbar v. McKelvie, 239 F.3d
307, 315 (3d Cir. 2001) (en banc).
Hicks argues that he is “in imminent danger of physical injury or death” because
he is “in nearly constant pain” due to a hernia, and because the pain “has become almost
unbearable” and “severely limit[s] his activities” (Dkt. 1, at 1). He maintains that hernias
“can lead to infection, bowel obstruction, and even death” (id. at 2).

He alleges that,

“[d]espite the fact that surgical repair [of a hernia] is the only way to prevent negative
outcomes, TDCJ and UTMB have a policy of refusing to provide hernia surgeries, except
in emergency circumstances, for the purpose of reducing cost and increasing profits”
(id.).
Through TDCJ’s administrative grievance procedure, Hicks requested surgical
consultation and surgical repair of his hernia (id. at 6). The response from TDCJ’s
medical grievance program states that the doctor treating Hicks’ hernia had assessed the
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hernia as “easily reducible” and had explained that Hicks “did not qualify for a referral”
for surgery because “Hospital Galveston General Surgery only takes offenders with nonreducible hernias” (id. at 4). TDCJ’s response further notes that Hicks has “continued to
be seen in accordance with the Correctional Managed Health Care Policy E. 37.1” (id.).
See Mesa v. Kasule, Civil No. 9:12-CV-42, 2013 WL 2151706, at * 3 (E.D. Tex. May 15,
2013) (explaining that hernia surgery is medically necessary only when the hernia
becomes “obstructed or strangulated,” but that surgery is considered elective when the
hernia is reducible).
Although Hicks invokes the phrase “imminent danger,” his conclusory allegations
are insufficient to satisfy Section 1915(g)’s requirements. See Banos, 144 F.3d at 885;
Ciarpaglini, 352 F.3d at 330-31.

At most, Hicks alleges that he suffers pain from his

hernia, that his activities are limited, and that TDCJ has refused to authorize surgical
repair of his hernia at this time because the hernia is easily reducible. TDCJ continues to
provide medical care for the hernia. Hicks’ disagreement with TDCJ’s policy regarding
treatment of reducible hernias is insufficient to show an imminent danger of serious
physical injury.
For the reasons stated above, Hicks’ request for leave to file a civil complaint in
forma pauperis is DENIED.
SIGNED at Galveston, Texas, this 12th day of October, 2018.
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George C. Hanks Jr.
United States District Judge

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