Hale v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE et al

Filing 5

MEMORANDUM ON DISMISSAL. Order denying 2 APPLICATION to Proceed In Forma Pauperis. The case is DISMISSED without prejudice. All other pending motions are DENIED. (Signed by Judge Ewing Werlein, Jr) Parties notified. (wbostic, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
BILLY HALE,
TDCJ-CID NO. 693364,

§
§
§
§
§

Plaintiff,

v.

§
§
§
§
§
§

TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, et al.,
Defendants.

CIVIL ACTION NO. H-15-0750

MEMORANDUM ON DISMISSAL
Plaintiff Billy Hale,
Department

of

Criminal

a state inmate confined in the Texas
Justice

Correctional

Institutions

Division's (TDCJ-CID) Allred Unit, has filed pro se a civil rights
complaint challenging his conditions of confinement.
1.)

(Docket No.

Plaintiff has also filed a Motion to Proceed In Forma Pauperis
(Docket

(IFP) .
accrued

No.2.)

"three-strikes"

frivolous

civil

rights

Because

Plaintiff

under

28

U.S.C.

cases

in

the

§

is

has

1915(g)

federal

previously
for

courts,

filing
his

IFP

application will be denied and this case dismissed.
BACKGROUND
Plaintiff's

Complaint

names

as

defendants

TDCJ-CID;

Brad

Livingston, TDCJ Executive Director; Jack Douglas, TDCJ Offender
Grievance Director; Frank Hoke, TDCJ Court Access Director; Shawn
Blair,

TDCJ Correctional Industries Director;

William Stephens,

TDCJ-CID Director; and, Rissie Owens, Director of the Texas Board
of Pardons and Paroles.

(Docket No.1 at 5.)

Claim"

of

section

consists

a

string

of

The "Statement of

conclusory

statements

regarding denial of access to the courts, denial of adequate sleep,
deficient

work and commissary policies,

inadequate medical

and

education programs, denial of due process by the Board of Pardons
and

Paroles,

and denial

towards his sentence.

of

"good-time"

(Id. at 6-7.)

and

"work-time"

credit

As relief, Plaintiff seeks an

investigation into his allegations and requests that Defendants be
"held

accountable,"

Plaintiff

also

seeks

any

injunctive,

declaratory or monetary relief the Court deems proper.

(Id. at 6.)

ANALYSIS
Under 28 U.S.C.

1915(g), a prisoner cannot pursue a civil

§

action in forma pauperis in federal court if,

on three or more

prior occasions, while incarcerated, he brought an action that was
dismissed for being frivolous,

malicious,

claim upon which relief may be granted.

or failing to state a

The only exception to this

revocation of an inmate's privilege to proceed in forma pauperis is
if he is in immediate danger of serious physical harm.

Banos v.

O'Guin, 144 F.3d 883, 884 (5th Cir. 1998).
Court records show that Plaintiff is subject to the threestrikes provision under
least

three

lawsuits

§

or

1915(g) because he previously filed at
appeals

2

in

the

federal

courts

while

incarcerated

that

were

failing to state a claim.
Cir.

August

district

3,

court

1915(g) .");

dismissed

as

Hale

v.

malicious,

See Hale v. Williams, No. 10-10144,

2010) ("This dismissal
each

frivolous,

count

as

one

Williams,

No.

or
(5th

and the dismissal by the
strike

under

28

7:07-CV-115-0

U.S.C.

(N.D.

§

Tex.)

(dismissed as frivolous January 22, 2010); Hale v. Williams, No. H95-5021
property,
1997)
1998).1

(S.D.

Tex.)

(partial

dismissal

of

claims

"regarding

and access to the courts" dismissed on September 26,

(no appeal taken from final judgment entered September 10,
Moreover,

Plaintiff's present complaint does not allege

any facts showing that Plaintiff is in immediate danger of serious
physical harm.

Thus,

Plaintiff is barred under

§

1915 (g)

from

proceeding with the present lawsuit in forma pauperis.

The partial dismissal of civil action H-95-5021 filed in
this district counts as a strike under § 1915(g). See Thornton v.
Merchant, 526 F. App'x 385, 388 (5th Cir. 2013) (partial dismissal
of complaint as frivolous, malicious, and for failure to state a
claim counts as a strike under 28 U.S.C. § 1915(g)).
3

CONCLUSION
Accordingly, it is ORDERED that Plaintiff's Motion to Proceed

In

Forma

Pauperis

(Docket

No.2)

DISMISSED pursuant to 28 U.S.C.

§

is

DENIED

and

this

case

is

1915(g), without prejudice to

refiling with payment of the full filing fee.

Any other pending

motions are further DENIED.
The Clerk will provide a copy of this Order to all parties, to
the TDCJ-Office of the General Counsel,
Station, Austin, TX

P.O.

Box 13084,

Capitol

78711, Fax [phone]; and to the Clerk of

the United States District Court for the Eastern District of Texas,
Tyler Division, 211 West Ferguson, Tyler, Texas, 75702, Attention:
Betty Parker, Three-Strikes List Manager.
SIGNED at Houston, Texas, on

~~~~~~__~~_____ ,

2015.

WERLEIN, JR.
ATES DISTRICT J

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