Cloud v. Miller et al
Filing
5
MEMORANDUM OPINION AND ORDER. (Signed by Judge Sim Lake) Parties notified. (cfelchak, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JOHN CLOUD, TDCJ #749521,
§
§
§
§
§
§
Plaintiff,
v.
STEVEN MILLER, et al.,
CIVIL ACTION NO. H-15-2823
§
§
§
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff John Cloud is an inmate in the custody of the Texas
Department of Criminal Justice - Correctional Institutions Division
("TDCJ").
Cloud has filed a Complaint Under the Civil Rights Act,
42
§
U.S.C.
violations
1983
of
his
("Complaint")
civil
(Docket
rights.
Entry No.
Cloud
Application to Proceed In Forma Pauperis
After reviewing all of
§
the pleadings as
has
1),
also
alleging
filed
(Docket Entry No.
required by 28
an
2) .
U.S. C.
1915A, the court concludes that this case will be dismissed for
reasons explained briefly below.
I.
Discussion
Cloud is presently confined at the Byrd Unit in Huntsville.
He sues Warden Steven Miller and former Warden Edward Howell for
conditions of confinement at the Byrd Unit.
In particular, Cloud
contends that officers at the Byrd Unit did not properly secure his
property when he was sent to the hospital recently on September 7,
2015, for "sciatica" and a bruised spine. 1
TDCJ identification card was
Cloud contends that his
lost and that he has been denied
access to property that reportedly concerns two active actions in
state court. 2
Without an identification card Cloud complains that
he is unable to make purchases at the prison commissary. 3
Cloud
also appears to allege that he has been denied access to courts and
to adequate medical care. 4
Cloud complains that Warden Miller and
Warden Howell are liable for their general "fail[ure]
to oversee
numerous [departments]" at the Byrd Unit. 5
It is evident from the pleadings that Cloud did not complete
the TDCJ two-step grievance process before filing this action.
See
Wendell v. Asher, 162 F.3d 887, 891 (5th Cir. 1998)
(outlining the
two-step
submitting
procedure,
which
at
Step
1
entails
an
administrative grievance at the institutional level followed by a
Step 2 appeal if the result is unfavorable) .
file a
§
1983 action,
Before a prisoner may
the Prison Litigation Reform Act requires
that he must properly exhaust administrative remedies.
1
Complaint, Docket Entry No. 1, pp. 4, 5.
2
Id. at 4.
3
Id.
4
Id.
5
Id. at 3.
-2-
42 U.S.C.
§
1997e(a); Dillon v. Rogers,
596 F.3d 260,
265
(5th Cir. 2010).
The Fifth Circuit has emphasized that "pre-filing exhaustion of
prior grievance process is mandatory" and that district courts lack
discretion
to
excuse
a
administrative remedies.
prisoner's
failure
to
exhaust
his
Gonzalez v. Seal, 702 F.3d 785, 788 (5th
Cir. 2012).
Moreover,
a
national
case
index
reflects
that
while
incarcerated in TDCJ Cloud has filed at least five previous civil
actions or appeals that have been dismissed by the federal courts
as frivolous.
See Cloud v. Webb,
April 8,
(dismissed as frivolous);
1998)
10521 (5th Cir. Nov. 24, 1998)
Civil No.
7:97-251
Cloud v. Webb, No.
(same).
et al.,
Thus,
Civil No.
98-
(same); Cloud v. Webb,
et al., Civil No. 7:99-207 (N.D. Tex. Jan. 30, 2002)
Dretke,
Tex.
(same); Cloud v. Thielman, et al.,
Civil No. 7:98-77 (N.D. Tex. Oct. 8, 1999)
v.
(N.D.
9:04-45
(E.D.
Tex.
(same); Cloud
July 19,
2004)
Cloud has at least five strikes against him for
filing frivolous lawsuits prior to filing the present action.
Under 28 U.S.C.
a
civil
action
incarcerated,
in
§
1915(g), a prisoner is not allowed to bring
forma
pauperis
in
federal
court
if,
while
three or more of his civil actions or appeals were
dismissed as frivolous or malicious or for failure to state a claim
upon which relief may be granted, unless he is in "imminent danger
of serious physical injury."
Hammons,
103 F. 3d 383,
exception a
385
prisoner must
See 28 U.S.C.
(5th· Cir.
§
1915(g); Adepegba v.
1996) .
To come within the
demonstrate
-3-
that
imminent
danger of
serious physical injury exists at the time the plaintiff seeks to
file his complaint.
1998).
Banos v. O'Guin, 144 F.3d 883, 885 (5th Cir.
The conclusory allegations made by Cloud in this case do
not show that he is in imminent danger of serious physical injury
and, therefore, summary dismissal is warranted.
II.
Conclusion and Order
Accordingly, the court ORDERS as follows:
1.
Plaintiff's
Application
to
Proceed
Pauperis (Docket Entry No. 2) is DENIED.
In Forma
2.
Plaintiff's Complaint Under the Civil Rights Act,
42 U.S.C. § 1983 (Docket Entry No. 1) is DISMISSED
without prejudice pursuant to 28 U.S.C. § 1915(g)
and, alternatively, is DISMISSED without prejudice
for the plaintiff's failure to exhaust administrative remedies.
The Clerk will provide copies of this Memorandum Opinion and
Order to the parties; to the TDCJ - Office of the General Counsel,
P.O.
No.
Box
13084,
Capitol
Station,
Austin,
TX
78711,
Fax
512-936-2159; 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:
Manager of the Three-
Strikes List.
SIGNED at Houston, Texas, on this 1st day of October, 2015.
SIM LAKE
UNITED STATES DISTRICT JUDGE
-4-
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