Fails v. Cage

Filing 7

MEMORANDUM OPINION AND ORDER denying 3 Motion to Proceed In Forma Pauperis, dismissing without prejudice 1 Prisoner Civil Rights Complaint. Plaintiff John D. Fails is sanctioned $200.00 for repetitive contumacious conduct. (Signed by Judge Sim Lake) Parties notified. (aboyd)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JOHN D. FAILS, JR.,
TDCJ NO. 1836551,
(Prior NOS. 1335587, 1330335)

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Plaintiff,
V.
TOMMY CAGE,
Defendant.

CIVIL ACTION H-13-1121

MEMORANDUM OPINION AND ORDER

Texas prison inmate John D. Fails, TDCJ NO. 1836551, has filed
numerous prisoner civil rights action in federal courts. At least
three of these suits have been dismissed as frivolous.
Basse

I

No.

Fails v.

No. 2:09cv266 (N.D. Tex. Feb. 25, 2010); Fails v. Weston,

2:08cv222

(N.D. Tex. Mar.

4, 2009); Fails v.

No. 2:08cv88 (N.D. Tex. Apr. 10, 2009).

DeSheilds,

Consequently, Fails is

barred from filing any new prisoner complaints without paying the
filing fee in advance unless he is in imminent danger of serious
physical harm at the time the suit is filed.

28 U.S.C.

§

1915(g).

In the present action Fails asserts that he was denied access
to the showers and other services while he was incarcerated in the
Montgomery County Jail. He complains that the denials violated his
rights under

the

Americans

with

injunctive relief and monetary

Disabilities Act

damages.

Fails is

and

seeks

currently

incarcerated at the Larry Gist State Jail located in Jefferson
County, Texas.
Fails' complaint does not show that he is in any immediate
danger of serious physical harm.

Moreover, his transfer from the

Montgomery County Jail moots his claims for injunctive relief.
Oliver v. Scott, 276 F.3d 736, 741 (5th Cir. 2002).

Therefore,

this action will be dismissed because Fails' allegations do not
warrant an exception to the three strikes rule of section 1915(g).
Choyce v. Dominsuez, 160 F.3d 1068, 1071

(5th Cir. 1998);

Banos v. OIGuin, 144 F.3d 883, 884 (5th Cir. 1998).
Fails has been sanctioned ($50.00) by the United States Court
for the Northern District of Texas for submitting a document in
violation of Rule ll(b) (1) and (2) of the Federal Rules of Civil
Procedure.
2010).

Fails v. Livinqston, No. 2:09cv0098 (N.D. Tex. Aug. 2,

The Northern District Court noted that although Fails was

proceeding without counsel he did not need legal training to
understand the difference between what is true and what is false.

I . Fails was also warned that future sanctions may be imposed if
d
he repeats the sanctioned conduct.
In the complaint filed in this action (Docket Entry No. 1,
pp. 4-5), Fails denies ever being sanctioned or warned by a court.
Fails' efforts to mislead and harass the judicial system cannot be
overlooked.

Dav v. Allstate Ins. Co., 788 F.2d 1110, 1114 (5th

Cir. 1986).

Therefore, the court will impose a sanction of $200

upon Fails for his continued abuse of the legal process. The TDCJCID Inmate Trust Fund shall place a hold on Failsf inmate trust
account; deduct 20% from each deposit made to the account and
forward the funds to the Clerk of this court until the entire
sanction has been paid.
Conclusion and Order
The court ORDERS the following:
1.

The Motion to Proceed In Forma Pauperis (Docket Entry
No. 3) is DENIED.

2.

The prisoner civil rights complaint (Docket Entry No. I),
filed by John D. Fails, Jr., TDCJ No. 1836551, is
DISMISSED without prejudice to refiling after payment of
the filing fees. 28 U.S.C. § 1915 (g).

3.

Fails is SANCTIONED $200 for his repetitive contumacious
conduct.

4.

The TDCJ-CID shall WITHDRAW the funds and forward them to
the Clerk pursuant to the terms of this Memorandum
Opinion and Order.

5.

The Clerk is directed to provide a copy of this
Memorandum Opinion and Order, by mail or electronic
means, to the parties; the TDCJ - Office of the General
Counsel, P.O. Box 13084, Austin, Texas, 78711; the TDCJID Inmate Trust Fund, P.O. Box 60, Huntsville, Texas
77342-0060; and the Pro Se Clerk for the United States
District Court of the Eastern District of Texas, Tyler
Division, 211 West Ferguson, Tyler, Texas 75702.

SIGNED at Houston, Texas, on this 25th day of April, 2013.

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SIM LAKE
UNITED STATES DISTRICT JUDGE