Howard v. Myers et al

Filing 6

MEMORANDUM AND ORDER OF DISMISSAL dismissing without prejudice 1 Complaint, denying 2 APPLICATION to Proceed In Forma Pauperis, denying 5 MOTION Requesting Correction of Plaintiff/Petitioner Name. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

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

PATRICK JAMES HOWARD,
TDCJ NO. 1527296,

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§
§
§
§
§
§
§

Plaintiff,
v.
LT. BRAD MYERS, et al.,
Defendants.

CIVIL ACTION NO. H-14-1179

MEMORANDUM AND ORDER OF DISMISSAL

Texas prison inmate Patrick James Howard, TDCJ No. 1527296,
has filed at least two prisoner civil rights suits in the federal
courts

that

were

dismissed

No. H-13-1015 (S.D. Tex. 2013)
(S. D.

Tex.

appeal,

2014).

as
i

frivolous.

v.

Gensil,

Howard v. Livingston, No. H-13-2679

He has also

filed a

prisoner civil

rights

which the United States Court of Appeals for the Fifth

Circuit dismissed as frivolous.
2014

Howard

WL 68917

Consequently,
Reform Act

(5th Cir.
the

2014)

Howard v.
(not

Three-Strikes

("PLRA")

bars

Howard

Davis, No.

13-40677,

selected for publication).

Rule
from

of

the

filing

Prison

Litigation

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.
In

28 U.S.C.
the

§

present

1915(g).
action Howard

complains

that

subjected to threats, profanity, and retaliation.

he

has

been

He alleges that

he was ordered to take off his shoes during a routine strip search.
Howard states that when he refused to comply the guards told him
they would gas him if he did not follow their orders
Complaint

Under

the

Civil

Rights

Act,

("Complaint"), Docket Entry No.1, p. 5).

42

(Emergency

U.S.C.

§

1983

Howard reconsidered his

situation and told the guards that he would take his shoes off, but
that he would be filing a grievance against
responded by telling Howard to be

sure he

correctly before he submitted a grievance.

them.

The guards

spelled their names
They also warned him

that they would "spend a little extra time"

searching his cell

while he waited out in the recreation yard.
Howard alleges that he was removed from his cell and taken
outside where he stood in 54 degree weather wearing only socks on
his feet.

He alleges that the yard was covered with urine and that

his socks were soiled and wet by the time he came back inside.

rd.

When Howard returned to his cell he found it in disarray and saw
that some of his property was missing.

He refused to go back into

his cell until a sergeant was called and he reported the problem to
her.
The sergeant took pictures of Howard's cell and agreed that
the guards were wrong "for tearing your stuff up."
also encouraged him to file a grievance.

rd. at 6.

She

Howard did so and listed

all of the items that were confiscated or destroyed; however, no

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effective efforts were made to investigate what Howard contends is
a

retaliatory act.

harassment

and

rd.

at

Instead,

7.

retaliation because

of

the

Howard endured more
grievance

he

filed.

Howard acknowledges that he is subject to the PLRA's three-strikes
provision, but he asserts that his life is in danger because of the
retaliation,

and he

contends

that

the

court must

do

something

before he suffers a physical injury (Complaint, Docket Entry No.1,
pp. 7 -8) .
Howard's pending complaint does not show that he is in any
immediate danger of serious physical harm.

Howard's

unsupported

fears that he might be harmed are not sufficient to warrant an
exception to the three-strikes rule of section 1915(g).
v. Scott, 94 F.3d 444, 446-447

(8th Cir. 1996).

See Davis

Therefore, this

action will be dismissed because Howard is barred under 28
§

1915 (g) .

Choyce v.

Dominguez,

1998) i Banos v. O'Guin,

160 F. 3d 1068,

144 F.3d 883, 884

1071

U.S.C.

(5th Cir.

(5th Cir. 1998).

Conclusion and Order

The court ORDERS the following:
1.

The Application to Proceed In
(Docket Entry No.2) is DENIED.

2.

The Emergency Complaint Under the Civil Rights Act,
42 U.S.C. § 1983 (Docket Entry No.1), filed by
Patrick James
Howard,
TDCJ No.
1527296,
is
DISMISSED without prejudice to refiling after
payment of the filing fees.
28 U.S.C. § 1915(g).

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Forma

Pauperis

3.

Plaintiff's
Motion
Requesting
Correction
of
Plaintiff/Petitioner Name, Request for Order from
the Court Ordering Law Librarian Taylor to Release
Six-Month Account Statement, and Be Ye Remembered
that a TDCJ Inmate Request Form
(1-60)
Was
Submitted to the US DC Clerk Office as Evidence as
to the Plaintiff Contineous [sic] Attempts of UnitExhaustion (Docket Entry No.5) is DENIED.

4.

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

SIGNED at Houston, Texas, on this the 13th day of May, 2014.

UNITED STATES DISTRICT JUDGE

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