McLure vs. Livingston et al
Filing
5
MEMORANDUM OPINION AND ORDER dismissing with prejudice 1 Complaint, denying 2 MOTION for Temporary Restraining Order. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ROBERT TROY McCLURE,
TDCJ NO. 1420457,
§
§
§
Plaintiff,
§
§
§
§
§
§
§
v.
BRAD LIVINGSTON, et al.,
Defendants.
CIVIL ACTION NO. H-14-1754
MEMORANDUM OPINION AND ORDER
Robert Troy McClure, a TDCJ inmate with a history of frivolous
litigation, has filed a civil rights complaint alleging that he was
subjected
to
living
in
a
heated
cell
incarcerated at the TDCJ Ferguson Unit.
without
a
fan
McClure filed an identical
suit that was dismissed as barred pursuant to 28 U.S.C.
McClure
v.
Livingston,
No.
while
H-14-1749
(S.D.
Tex.
§
1915(g).
2014).
In
dismissing the case the district court found that McClure was not
in imminent danger,
§
which would entitle him to an exception to
1915(g) 's three-strikes rule.
McClure
remedies.
had
failed
to
See 42 U.S.C.
The current
exhaust
§
complaint
Id.
the
The court also found that
available
administrative
1997e.
is McClure's
second filing alleging
heated cell conditions at the Ferguson Unit.
Maintenance of the
instant
action
resources.
1990).
would
be
redundant
and
a
waste
of
judicial
See Mayfield v. Collins, 918 F.2d 560, 561-62 (5th Cir.
A prisoner's civil rights suit is malicious as a matter of
law and is subject to dismissal where the suit raises claims that
are duplicative of a prior suit filed by the same prisoner in
federal court.
Cir.
1993).
WL 2924920,
See Pittman v. Moore,
See
*1
also
(5th Cir.
Blakely v.
June 30,
980 F.2d 994,
Evans,
2014),
-
F.
994-95
App'x -,
citing Pittman.
(5th
2014
This
prisoner action will be dismissed as malicious under 28 U.S.C.
§
1915 (e) .
Wilson v. Lynaugh, 878 F.2d 846
complaints may be dismissed under
relitigate
claims
which
have
§
(5th Cir. 1989)
1915(d)
already
(IFP
if they attempt to
been
submitted
by
the
plaintiff and rejected by the courts), citing Bailey v. Johnson,
846 F.2d 1019 (5th Cir. 1988).
Conclusion
Accordingly,
based on
the
foregoing,
the
court
ORDERS
follows:
1.
The complaint ("Emergency" Motion to Proceed I.F.P.
Under imminent danger exception of § 1915(g),
Docket Entry No.1) is DISMISSED WITH PREJUDICE as
malicious.
28 U.S.C. § 1915(e).
2.
The "Emergency" Order to Show Cause for an
Preliminary Injunction & a Temporary Restraining
Order (Docket Entry No.2) is DENIED.
3.
The Clerk is directed to provide a copy of this
Memorandum Opinion and Order to the parties; the
-2-
as
TDCJ
Office of the General Counsel, P.O. Box
13084, Austin, Texas 78711, Fax Number 512-9362159; and the Clerk of the United States District
Court for the Eastern District of Texas, Tyler
Division, 211 West Ferguson, Tyler, Texas 75702,
Attention:
Manager of the Three-Strikes List.
SIGNED at Houston, Texas, on this the 17th day of July, 2014.
UNITED STATES DISTRICT JUDGE
-3-
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