Wade v. Bradley et al

Filing 23

MEMORANDUM OPINION AND ORDER granting 5 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM, denying 16 MOTION for Leave to File second amended complaint, denying 17 MOTION, denying 4 MOTION to Vacate. Wade is order to pay a $300.00 sanction. Wade is barred from filing any civil rights actions in this district until the sanction is paid in full. TDCJ Inmate Trust Fund ordered to place a hold on Wade's account until the entire sanction is paid. (Signed by Judge Sim Lake) Parties notified.(aboyd, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

ALEX MELVIN WADE, JR.
d/b/a AMERICAN CONSULTANT,
LEGAL LITIGANTS, PARALEGALS,
PROFESSIONAL ADJUSTERS &
FINANCIAL BROKERS,
TDCJ NO. 1624189,

§
§
§
§
§
§
§
§
§
§
§
§
§
§

Plaintiff,
v.
DAVID BRADLEY, et al.,
Defendants.

CIVIL ACTION NO. H-13-0765

MEMORANDUM OPINION AND ORDER
Alex

Melvin

Wade,

an

inmate

of

the

Texas

Department

of

Criminal Justice, Correctional Institutions Division ("TDCJ"), has
filed a Petition for Writ of Mandamus/Civil Complaint & Temporary
Restraining

Order/Preliminary

Entry No.1)

Injunction

against David Bradley,

("Complaint")

(Docket

Clerk of the United States

District Court for the Southern District of Texas and Deputy Clerk
Terri Hanniable for allegedly denying him access to the courts.
Bradley and Hanniable have filed a Motion to Dismiss for failure to
state
No.5)

a

claim upon which

relief

can be

granted

(Docket

Entry

They also move to dismiss this action because Wade has not

paid the filing fee and is not eligible to proceed as a pauper
under the three strikes provision of the Prison Litigation Reform
Act

("PLRA").

The court has reviewed the pleadings,

along with

Wade's criminal and civil litigation history,

and has concluded

that this action should be dismissed because it is frivolous and
because Wade is barred from filing any civil complaints while he is
incarcerated without paying the entire filing fee in advance.
I.
A.

Claims and Background

Wade's Allegations

Wade,

who

purports

to

run

a

business

called

American

Consultant, Legal Litigants, Paralegals, Professional Adjusters &
Financial Brokers ("American Consultants"), alleges that in another
case,

Wade v.

2012),

Best Buy,

Bradley,

Civil Action No.

Hanniable,

and

other

H-II-4131

unnamed

(S.D.

district

Tex.
clerk

employees mishandled funds he presented for payment of filing fees.
He alleges that, on November 9, 2011, he submitted an instrument
labeled "Claim Check/Voucher/Invoice" in the amount of $1,150.00
payable to the Clerk from Western World Insurance Group in payment
for

three

civil

actions

plus

a

$100.00

(Docket Entry No. I, p. 2 and Exhibit A).l

payment

for

an appeal

Wade complains that the

defendants failed to give him notice as to whether the item had
been honored and that he could have taken other measures had he
been notified of its non-acceptance.
Wade further alleges that he submitted the $455.00 appellate
filing fee for Cause No. H-11-4131 on December 12, 2012.

Id. at 3.

lExhibit A,
attached to Wade's Complaint,
is a
typewritten instrument purported to be a check, Docket
No. I-I, p. 3 of 4).
It appears to be a fabrication.
-2 -

crude
Entry

However, Wade alleges that the check was not honored, nor did he
receive notice that it was not accepted.
denied

meaningful

access

to

the

Wade contends that he was

courts

as

a

result

of

the

defendants' actions.
Wade seeks an injunction prohibiting the District Clerk from
impeding his access to the courts.

He also requests that he be

credited with paying the filing fees in the various actions he has
prosecuted.

Finally,

Wade

requests

that

the

court

award him

damages in the amount of $885,000.
B.

Wade's Criminal and Civil Litigation History

Wade is currently serving a 20-year sentence in TDCJ for a
forgery conviction.
Entry No.5-I, p. 1)

See TDCJ Offender Information Printout (Docket
His parole was revoked because he was found

guilty of a new offense, attempted theft of more than $100,000 but
less than $200,000, and was sentenced to 45 years in prison.

Id.

Wade has a long history of convictions for forgery and theft with
nearly two dozen judgments against him in Harris County.

See

Harris County Criminal Search Results (Docket Entry No. 5-2)
Wade's most recent conviction for attempted theft involved a
scheme to obtain goods from the Best Buy appliance store using a
payment instrument drawn on Western World Insurance Group.
Indictment

(Docket

Entry

No.

5-3)

The

payment

See

instrument

allegedly submitted to the District Court for the payment of the
filing fees in H-II-4131 is also drawn on Western World Insurance
Group (Docket Entry No. I, p. 2, and Exhibit A) .
-3-

Wade has previously filed eighteen complaints and petitions in
the Southern District of Texas. 2

Some of these suits involved the

use of drafts or checks generated by Wade that were rejected by
businesses

or

financial

institutions.

See,

~,

American Consultant v. Bank of America, H-09-3198.

Wade

d/b/a

All of Wade's

sui ts were unsuccessful, al though extensive resources were expended
by the defendants and the courts to resolve the actions.

Other

actions were more quickly dismissed because the pleadings were
clearly groundless or time-barred.
While he was incarcerated Wade filed his complaint against
Best Buy, and the suit was dismissed as time-barred.
Buy, H-11-4131.

Wade v. Best

While the court in Best Buy dismissed the suit as

2Wade v. Harris County District Attorney's Office, H-11-4132
(dismissed for failure to comply); Wade v. Best Buy, H-11-4131
(dismissed as meritless); Wade v. Thaler, H-11-3S14
(habeas
petition dismissed as procedurally and time-barred); Wade v.
Dominion at Woodland, H-11-3243 (dismissed denying motion to
proceed ifp); Wade v. Thaler, H-10-S100 (habeas petition dismissed
for failure to exhaust remedies); American Consultants v. Capital
One, H-10-24S4 (dismissed on summary judgment, claims found to be
frivolous); Wade d/b/a American Consultant v. Bank of America,
H-09-3198 (dismissed on summary judgment); Wade v. Thaler, H-091900 (habeas petition dismissed on summary judgment); Wade v.
Quarterman, H-06-4030 (habeas petition dismissed as successive and
time-barred); Wade v. Cockrell, H-02-2828 (habeas petition dismissed as time barred); Wade v. Thomas, H-01-2087 (dismissed as
frivolous); Wade v. Johnson, H-OO-2S01 (habeas petition denied for
failure to exhaust); Wade v. Texas Department of Criminal Justice,
M-OO-0023 (dismissed voluntarily); Wade v. Texas Department of
Criminal Justice, C-OO-0014; Wade v. Rowe, H-99-1860 (dismissed as
frivolous); Wade v. Johnson, H-97-3733 (habeas dismissed for
failure to exhaust remedies); Wade v. Farmer's Insurance, H-96-3409
(diversity insurance contract dismissed for want of prosecution);
Wade v. Medical Care System, H-92-02107 (civil rights claim dismissed for lack of jurisdiction).
-4-

untimely,

the court also denied Wade's motion for leave to amend

his pleadings because the proposed amendment would be futile since
counsel for Western World Insurance Group stated under oath that
the

"Insurance Draft"

Wade

had

submitted to

authorized (Docket Entry No. 5-5, p. 7).

Best

Buy was

Wade also filed a suit

against Capital One that the court dismissed as frivolous.
Capital One, N.A., H-IO-2454.

not

Wade v.

In both cases the courts found that

the payment instruments presented by Wade to the defendants were
"counterfeit" and "fraudulent."

Id.i Docket Entry No. 5-4, p. 3.

Wade also filed suit against TDCJ officials alleging that he
had been denied due process and access to the courts.
Thomas, Civil Action No. H-01-2087 (S.D. Tex. 2002)
No. 5-7).

He also alleged deliberate indifference,

Wade v.

(Docket Entry
retaliation,

and violations of the Americans with Disabilities Act.

Id.

In

dismissing the complaint as frivolous, the court observed that Wade
untruthfully asserted that in Bounds v.

Smith the Supreme Court

"specifically ordered that every prison have typewriters and copy
machines for

[the]

use of offenders."

rd. at 13.

The district

court held that such a statement "requires no discussion."

Id.

It

is beyond dispute that prison inmates do not have a free-standing,
federally protected right to use office equipment to carry out
their litigation.
1988)

i

See Beck v. Lynaugh, 842 F.2d 759, 762 (5th Cir.

see also In re Maxy,

674 F.3d 658,

Taylor v. Coughlin, 29 F.3d 39, 40

661

(7th Cir.

(2d Cir. 1994)

-5-

._-----------_._------------

2012)

i

(acknowledging

that

there

is

"no constitutional

right

to

a

typewriter as

an

incident to the right of access to the courts"); Stubblefield v.
Henderson,

475

F.2d

26,

26-27

(5th

Cir.

protected right to the use of typewriters")
II.
A.

("no

1973)

federally

3

Analysis

Standards

The defendants contend that this action should be dismissed
because Wade has failed to state a claim upon which relief can be
Fed.

granted.

R.

Civ.

P.

Motions to dismiss under

12 (b) (6) .

Rule 12 (b) (6) are "viewed with disfavor" and should be granted only
if

it

is

evident

that

entitling him to relief.

the

plaintiff

Turner v.

cannot

Pleasant,

prove

any

facts

663 F.3d 770,

775

(5th Cir. 2011), citing Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955
(2007); Harrington v. State Farm Fire & Cas. Co., 563 F.3d 141, 147
(5th Cir. 2009).

In determining whether the plaintiff has stated

a claim upon which relief can be granted, a reviewing court must
accept the well-pleaded facts alleged in the complaint as true and
construe

the

allegations

in

the

light

most

favorable

to

the

plaintiff.

Turner, 663 F.3d at 775.

In reviewing the pleadings,

the

liberally

allegations

court

construes

the

of

a

pro

se

3Wade filed another access to courts claim that was dismissed
as frivolous. Wade v. Rowe, Civil Action No. H-99-1860 (S.D. Tex.
2000). He also filed a prisoner civil rights action in the Eastern
District of Texas that was dismissed as frivolous.
Wade v.
Director, TDCJ-CID, Civil Action No. 1:11cv00608 (E.D. Tex. 2012).
-6-

complaint.

Haines v. Kerner, 92 S. Ct. 594 (1972).

Funk v.

also take notice of matters of public record.
Corp., 631 F.3d 777, 783

The court may
Stryker

(5th Cir. 2011), citing Norris v. Hearst

Trust, 500 F.3d 454, 461 n.9 (5th Cir. 2007)

("It is clearly proper

in deciding a 12(b) (6) motion to take judicial notice of matters of
public record.").
Because
convictions,

Wade

is

incarcerated

pursuant

to

state

felony
This

he is subject to the provisions of the PLRA.

action may therefore be dismissed if the court finds the claims are
frivolous pursuant to the provisions of 28 U.S.C.
U.S.C.
2009).

§

1915A.

§

1915(e) or 28

See Samford v. Dretke, 562 F.3d 674, 678 (5th Cir.

In making such a determination, the court applies the same

standard used on rulings under Fed. R. Civ. P. 12(b) (6).
prisoner's complaint must be dismissed if

Id.

A

"' it appears that no

relief could be granted based on the plaintiff's alleged facts.'"
Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999).
B.

Wade's Claims are Frivolous

Wade's complaint concerns his right of access to the courts.
A prison inmate's right of access to the courts is protected by the
Constitution and includes the right to challenge the validity or
conditions of his confinement.
1491, 1498 (1977).

Smith,

97 S.

Ct.

However, the right is limited to the filing of

nonfrivolous legal claims.
310-11

See Bounds v.

Johnson v.

Rodriguez,

(5th Cir. 1997), citing Lewis v. Casey,
-7-

110 F.3d 299,

116 S. Ct. 2174,

2182 (1996)

This right is not intended to provide an inmate the

abili ty to take advantage of the
fraudulent financial schemes.

judicial

system or carry out

See Lewis, at 2182 ("In other words,

Bounds does not guarantee inmates the wherewithal to transform
themselves into litigating engines capable of filing everything
from shareholder derivative actions to slip-and-fall claims.").
By itself,

Wade's prolific record of filing actions in the

Southern District of Texas belies his claim that he has been denied
access to the courts.

See Beck, 842 F.2d at 762.

His litigation

history regarding his use of forged commercial instruments as well
as other claims is replete with false allegations.

The record

reflects that Wade has attempted to commit a fraud on the court by
attempting

to pay

instrument.

the

court's

filing

fees

with

a

counterfeit

Wade cannot assert a viable civil rights violation

because he has

failed to show that he has been prevented from

pursuing an arguable claim in court.
764, 769 (5th Cir. 2009)
(5th Cir. 1998).

i

Brewster v. Dretke, 587 F.3d

Ruiz v. United States, 160 F.3d 273, 275

Wade's complaint that he has been denied access

to the courts will be dismissed as frivolous because it has no
basis in law.

28 U.S.C.

§

1915(e)

i

28 U.S.C.

§

1915Ai Samford, 562

F.3d at 674.
C.

Defendants are Entitled to Immunity

As court officials, the defendants are entitled to absolute
immunity to any claims for damages arising out of actions taken
pursuant to a judge's orders while enjoying qualified immunity for
-8-

performing routine duties not explicitly ordered.

Clay v. Allen,

242 F.3d 679, 682 (5th Cir. 2001), citing Tarter v. Hury, 646 F.2d
1010, 1013 (5th Cir. 1981); see also Tubwell v. Almond, 42 F.3d 641
(5th Cir. 1994)

(table).

The defendants are government employees charged with managing
court business and are entitled by qualified immunity to protect
them from having to respond to frivolous suits such as this one.
See Morgan v.

Swanson,

659

F.3d 359,

370-371

(5th Cir.

2011).

Qualified immunity also protects them from needless discovery such
as the "Motion for an Order Compelling Discovery"

filed by Wade

(Docket Entry No. 17), which serves no purpose other than to harass
the defendants.
1986).

Jacquez v. Procunier, 801 F.2d 789, 791 (5th Cir.

To overcome the affirmative defense of qualified immunity

a plaintiff must show that the government official violated clearly
established

statutory

or

constitutional

reasonable person would have known.
S.

Ct.

2727,

2738

(1982).

rights

Harlow v.

of

which

Fitzgerald,

a
102

Wade has failed to allege that the

defendants have violated any clearly established law by refusing to
accept his counterfeit check for payment of his
contrary,

defendants

were

upholding

their

fees.

statutory

On the
duties

to

collect and account for required fees by refusing to accept for
payment instruments that had no negotiable value.
§ 751(e); 28 U.S.C. § 1914.

See 28 U.S.C.

Therefore, defendants are entitled to

dismissal of this suit under qualified immunity.

Wade's motion for

discovery (Docket Entry No. 17) will also be denied.
-9-

D.

Wade is Barred from Proceeding IFP

Wade did not pay the filing fee when he filed his complaint.
Barring a

show of

imminent danger,

a prisoner may not

file

an

action without prepayment of the filing fee if he has, on three or
more prior occasions, filed a prisoner action in federal district
court or an appeal in a federal court of appeals that was dismissed
as frivolous or malicious or for failure to state a claim upon
which relief can be granted.

28 U.S.C.

§

Hammons, 103 F.3d 383, 385 (5th Cir. 1996)

1915(g)

j

Adepegba v.

Wade has accumulated

at least three such dismissals or "strikes,"4 and his pleadings do
not indicate that he is in any physical danger.
Dominguez,

160 F.3d 1068, 1071

(5th Cir. 1998)

144 F.3d 883, 884 (5th Cir. 1998).

See Choyce v.
Banos v. OlGuin,

j

Moreover, Wade would not be in

physical danger as a result of the alleged action of defendants.
See Vandiver v.
(6th

Cir.

2013)

Prison Health Services,
Therefore,

Wade' s

Inc.,

727 F.3d 580,

Complaint

is

dismissal as barred by the three strikes provision of
III.

subj ect
§

585
to

1915(g).

Motion to Amend Complaint

Wade has filed a Second Motion to File an Amended Complaint
(Docket Entry No. 16) in which he seeks to assert a claim against
a clerk's office employee for allegedly misfiling a pleading in
Wade v.

Thaler,

H-11-3514.

He

contends

that

the

pleading

in

4Wade v. Capital One, N.A., H-10-2454j Wade v. Thomas, Civil
Action No. H-01-2087j Wade v. Rowe, Civil Action No. H-99-1860j
Wade v. Director, TDCJ-CID, Civil Action No. 1:11cv00608.
-10-

H-11-3514 (Docket Entry No. 16) was a motion for summary judgment
but

was

instead filed

as

a

personal

He

declaration.

further

contends that officials destroyed evidence that demonstrated his
innocence

and

would

have

influenced

dismissed his habeas petition.

the

district

judge

who

Wade's motion was filed after the

defendants filed their motion to dismiss.
Under Federal Rule of Civil Procedure 15(a), leave to amend
"shall be freely given when justice so requires."
to amend "is by no means automatic."
952 F.2d 841,

845-46

(5th Cir.

Little v. Liquid Air Corp.,

1992).

The court examined the

pleading in question and verified that
"DECLARATION OF ALEX MELVIN WADE,
No. 16).

However, leave

JR."

it was

clearly labeled

(H-11-3514,

Docket Entry

In addition, the federal habeas petition filed in that

action was dismissed for procedural reasons.

Moreover,

actual

innocence claims cannot be brought in habeas proceedings as an
independent ground for habeas relief.
F.3d

359,

367

independently

(5th Cir.
cognizable

2006)

Foster v. Ouarterman, 466

(" [A] ctual- innocence

federal-habeas

claim.").

is

not

an

Therefore,

Wade's motion to amend his pleadings will be denied because it is
futile.

Whitley v.

Hanna,

726 F.3d 631,

648

(5th Cir.

2013)

i

Parish v. Frazier, 195 F.3d 761, 763-764 (5th Cir. 1999).
Wade has also filed a "Motion to Vacate Judgment Dismissing
Plaintiff's [sic] and Memorandum in Support" (Docket Entry No.4).
The motion will be denied as moot.

-11-

IV.

Sanctions

Wade's litigation history demonstrates a marked lack of regard
for the judicial system.

wade has repeatedly wasted the scarce

resources of the courts.

Sanctions are therefore appropriate to

deter him from filing additional frivolous lawsuits.

See In re

McDonald, 109 S. Ct. 993, 996 (1989); Mayfield v. Klevenhagen, 941
F.2d 346, 348 (5th Cir. 1991); Day v. Allstate Ins. Co., 788 F.2d
1110,

1114

(5th Cir.

1986)

The court

has determined that

a

monetary sanction should be imposed to deter Wade from continuing
his abuse of the judicial system.
124,

125

(5th Cir.

1988)

See Gabel v. Lynaugh, 835 F.2d

("We do not sit as means by which the

system can be punished - or to be punished ourselves
pursui t

of frivolous

prisoners.") .

- by the

or mal icious appeals by disgruntled state

Therefore, the TDCJ-CID Inmate Trust Fund will be

instructed to withdraw Three Hundred Dollars ($300.00) from Wade's
Inmate Trust Account and to forward the funds to the Clerk of the
Court to satisfy the sanction.

Wade may not withdraw any funds

from the account except pursuant to court order and may not file
any new suits until the sanction has been paid.
Board of Corrections,

901 F.2d 474

(5th Cir.

Vinson v. Texas

1990); Gelabert v.

Lynaugh, 894 F.2d 746 (5th Cir. 1990).
V.

Conclusion

The court ORDERS the following:
1.

Defendants' Motion to Dismiss (Docket Entry No.5)
is GRANTED.
-12-

2.

This prisoner Complaint (Docket Entry No.1), filed
by Inmate Alex Melvin Wade, TDCJ No. 1624189, is
DISMISSED because it is frivolous and because Wade
is barred from filing prisoner complaints without
paying the filing fee in advance.
28 U.S.C.
§ 1915(e); 28 U.S.C. § 1915(g).

3.

Wade's motions
are DENIED.

4.

Wade is ORDERED to pay a $300.00 SANCTION for his
continuing practice
of
filing
frivolous
and
vexatious suits.

5.

Wade is BARRED from filing any civil rights actions
in this district until the sanction is paid in
full.
The Clerk is instructed that all future
actions filed by Wade be returned to him and not be
docketed unless accompanied by proof that the
sanction has been paid in full or by a notarized
statement from a physician that Wade is in imminent
physical danger because of the matters alleged in
the proposed action.

6.

The TDCJ Inmate Trust Fund is ORDERED to place a
hold on the inmate trust account of Alex Melvin
Wade, Jr. (TDCJ No. 1624189) and withdraw funds
from Wade's account and forward them to the Clerk
of this court on a regular basis until the entire
sanction ($300.00) has been paid.

7.

The Clerk is directed to provide a copy of this
Memorandum Opinion and Order dismissing this action
to the parties; the TDCJ - Office of the General
Counsel, P.O. Box 13084, Austin, Texas 78711, Fax
Number 512-936-2159; the Pro Se Clerk, United States
District Court, Eastern District of Texas, Tyler
Division, 211 West Ferguson, Tyler, Texas 75702; and
the TDCJ Inmate Trust Fund, P.O. Box 60, Huntsville,
Texas 77342-0060.

(Docket Entry Nos.

4,

16,

and 17)

SIGNED at Houston, Texas, on this 29th day of January, 2014.

UNITED STATES DISTRICT JUDGE
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