Lewis v. Livingston et al
Filing
6
MEMORANDUM OPINION AND ORDER denying 3 APPLICATION to Proceed In Forma Pauperis, dismissing without prejudice 1 Prisoner Civil Rights Complaint. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CURTIS MACK LEWIS,
TDCJ-CID NO. 646507,
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Plaintiff,
v.
WILLIAM STEPHENS, Director,
Texas Department of Criminal
Justice, et al.,
Defendants.
CIVIL ACTION NO. H-14-0002
MEMORANDUM OPINION AND ORDER
Curtis
Hightower
Mack
Unit
of
Lewis,
the
an
inmate
Texas
incarcerated
Department
of
at
the
Criminal
L.
V.
Justice-
Correctional Institutions Division ("TDCJ"), has filed a prisoner
civil rights complaint alleging denial of medical services.
also filed an application to proceed as a pauper.
He has
Lewis has a
history of filing prisoner civil rights complaints, many of which
have been dismissed as frivolous, malicious, or without any claim
upon which relief could be granted.
The court will dismiss this
action because of Lewis's litigation history.
I.
28 U.S.C.
Claims and Allegations
Lewis asserts that he has the following ailments:
1.
heart disease;
2.
hypertension;
§
1915(g).
3.
diabetes;
4.
liver disease;
5.
cardiovascular disease;
6.
peripheral artery disease;
7.
sclerosis of the arteries;
8.
diabetic neuropathy;
9.
sciatic nerve damage;
10.
lumbar spinal disorder; and
11.
degenerative disc disease.
Docket Entry No.1, p. 3.
Lewis further alleges that he may have other maladies, such as
kidney disease and liver cancer, that have not been diagnosed.
Id.
He claims that doctors have willfully and systematically denied him
adequate
medical
treatment
since
July
of
2003.
Lewis
cites
incidents in which he was allegedly denied treatment for his spinal
problems from 2004 through 2008.
Id.
He further complains that he
was denied treatment for his heart condition during 2009,
2011, and 2012.
Id. at 4.
2010,
The last alleged denial occurred on June 5, 2012.
Lewis names five doctors who are located at other units:
Bruce Smith, MD (Wayne Scott); Ricardo Victoria, MD (Wayne Scott) ;
Aftab S. Ahmad, MD (Jester III); Tawna L. Smith, MD (Jester III);
and
J.
Coronada,
MD
(Connelly
Unit)
Lewis
only
names
one
defendant who is assigned to the Hightower unit where Lewis is
incarcerated,
Senior
Warden
D.
following relief:
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Blackwell.
Lewis
seeks
the
1.
a declaration that the above described acts and
omissions have violated Lewis's constitutional
rights;
2.
a preliminary and permanent injunction mandating
proper and adequate medical care for Lewis;
3.
an order authorizing outside medical care for Lewis;
4.
a jury trial; and
5.
any additional relief that may be appropriate.
II.
Analysis
Barring a show of imminent danger, under the Prison Litigation
Reform Act of
1995
a prisoner may not
file
prepayment of the filing fee if he has,
an action without
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, malicious or [for] failure to state a claim upon which
relief may be granted, unless [he] is in imminent danger of serious
physical injury."
28 U.S.C.
§
F.3d 383, 385 (5th Cir. 1996).
1915(g); Adepegba v. Hammons, 103
Lewis accumulated at least six such
dismissals before filing the complaint in this action, and is no
longer
allowed
to
proceed
in
forma
pauperis
pursuant
to
the
provisions of section 1915(g) unless he is in imminent danger.
See
Lewis v. Collins, Civil Action No. H-95-1225
(S.D. Tex. Oct.
1995); Lewis v.
(5th Cir.
1996)
Collins, Appeal No.
(affirming No.
No. G-94-3233
95-20899
H-95-1225); Lewis v.
Collins,
5,
Feb. 29,
Civil Action
(S.D. Tex. Jan. 18, 1996); Lewis v. Collins, Civil
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Action No. H-95-5584 (S.D. Tex. Dec. 11, 1996)
Civil Action No.
H-95-3276
Collins, Appeal No.
(S.D.
95-20244,
Tex.
Jan.
Lewis v. Collins,
i
29,
i
Lewis v.
(5th Cir.
1996 WL 405446
1996)
June 25,
1996) .
In dismissing the appeal
filed in Cause No.
95 -20244,
the
United States Court of Appeals for the Fifth Circuit also found
that Lewis had been previously warned against
filing
frivolous
appeals but failed to heed the Fifth Circuit's admonition.
1996 WL 405446.
Lewis,
Consequently, the Fifth Circuit barred Lewis from
filing "any pro se, in forma pauperis, civil appeal in this court,
or any pro se, in forma pauperis, initial civil pleading in any
court which is subject to this court's jurisdiction, without the
advance written permission of a judge of the forum court./I
Lewis has failed to obtain such permission.
instructed
Circui t
"to
the
clerk of
return to
that
Lewis,
inconsistent with this bar./I
court
The Fifth Circuit also
and all
unf iled any
Id.
courts
at tempted
wi thin
the
submission
Id.
In an apparent attempt to side-step section 1915(g)'s threestrikes bar, Lewis has submitted a typed motion to proceed in forma
pauperis claiming that he is in imminent danger of physical harm
(Docket Entry No.3) .
In support of this claim Lewis repeats his
allegations that he suffers from coronary disease and asserts that
he has not had adequate medical treatment.
rd. at 4.
He states
that he "strongly feels that he may have a massive heart attack or
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a serious stroke because of the faint feelings and the pain he
experiences in both, his left and right [Carotid Arteries]."
Id.
Lewis has previously used this tactic, which was rejected by
the district court because it was clear that he was tailoring his
allegations
to
circumvent
the
three-strikes bar.
See Lewis v.
Trinci, H-05-1224 (Order of Dismissal, Docket Entry No.
Similarly,
Lewis/s
allegations
and
arguments
in
51
the
p. 5).
current
complaint demonstrate his dissatisfaction with the level of care he
is
receiving l
which
is
deliberate indifference.
591
(5th Cir. 2012)
i
insufficient
to
support
a
claim
of
See Sarna v. Hannigan l 669 F.3d 585 1 590-
Gobert v.
Caldwell l 463 F.3d 339
1
346
(5th
Cir. 2006).
Although the court must liberally construe a prisonerls claims
and generally accept the truth of his assertions,
allow a prisoner l barred under section 1915(g),
this does not
to proceed as a
pauper when his claims of endangerment are based only on conclusory
allegations.
580,
585
vandiver v. Prison Health Services,
(6th Cir.
2013).
Inc., 727 F.3d
Lewis does not present any specific
facts showing that any health provider was deliberately indifferent
to his serious health needs.
Moreover,
he fails to demonstrate
that he was in any danger at the time he filed his complaint.
Ciarpaglini v. Saini l 352 F.3d 328, 330 (7th Cir. 2003).
The court has at least twice previously informed Lewis that he
is barred from filing a prisoner civil rights complaint without
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paying the fee in advance unless he can show he is in imminent
danger.
See Lewis v. Trinci, H-05-1224; Lewis v. Trinci, H-05-1241
(S.D. Tex. Apr. 26,
Being a frivolous filer with a long
2005).
history of vexatious litigation, Lewis cannot be allowed to file
another complaint without making an explicit showing that he is in
imminent danger of serious physical harm attributable to acts or
omissions by custodial officials.
See Pettus v. Morgenthau, 554
F.3d 293, 297-298
Further, Lewis must show that
there
(2d Cir. 2009).
is a nexus of the alleged danger and the asserted civil
rights violation.
Having failed to do so,
the pauper's
application must be denied,l and Lewis cannot be allowed to proceed
without paying the fee in advance.
The court will dismiss the
complaint filed in this action without prejudice to payment of the
entire $400 filing fee in advance.
III.
28 U.S.C.
§
1915(g).
Conclusion
The court ORDERS the following:
1.
The Application to Proceed Without Prepayment of
Fees (Docket Entry No.3) is DENIED.
2.
The prisoner civil rights Complaint (Docket Entry
No.1), filed by TDCJ inmate Curtis Mack Lewis,
TDCJ No. 646507, is DISMISSED WITHOUT PREJUDICE.
28 U.S.C. § 1915(g).
IThe Application to Proceed Without Prepayment of Fees is also
subject to denial because Lewis failed to attach a certified copy
of his inmate trust fund statement for the 6-month period preceding
the filing of this action.
28 U.S.C. § 1915(a) (2).
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3.
The Clerk is directed to provide a copy of this
Memorandum Opinion and Order to the parties; the
TDCJ
Office of the General Counsel, P.O. Box
13084, Austin, Texas 78711, Fax Number 512-9362159; and the Pro Se Clerk's Office for the
United States District Court, Eastern District of
Texas, Tyler Division, 211 West Ferguson, Tyler,
Texas 75702.
SIGNED at Houston, Texas, on this 9th day of January, 2014.
UNITED STATES DISTRICT JUDGE
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