Manuel v. Captain Chestain

Filing 4

ORDER OF DISMISSAL DENYING as moot 2 MOTION/APPLICATION to Proceed In Forma Pauperis. Case terminated on 8/26/2016(Signed by Judge Gray H Miller) Parties notified.(rkonieczny, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
BRICKEY JUAN MANUEL,
Plaintiff,
v.
CAPTAIN CHASTAIN,
Defendant.

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CIVIL ACTION NO. H-16-2595

ORDER OF DISMISSAL
Plaintiff Brickey Juan Manuel is a state probationer currently incarcerated at the
Cheyenne Center, Inc. (the “Center”), in Houston, Texas. The Center contracts with the
Texas Department of Criminal Justice to provide residential substance abuse treatment to a
limited number of state prisoners. Plaintiff filed this pro se state inmate section 1983 lawsuit
against the captain of an M.T.C. prison center. He complains that the captain denied him
leave to do legal research off-premises at a public law library, and that it resulted in dismissal
of his civil lawsuit.
To the extent plaintiff is currently a prisoner, he is subject to the “three strikes”
provision of section 1915(g). Records for this Court show that plaintiff has accumulated at
least five “strikes” and may no longer proceed in forma pauperis. See Manuel v. Walmart,
Inc., C.A. No. H-15-3026 (S.D. Tex.) (dismissed for failure to state a claim); Manuel v.
Hernandez, C.A. No. H-15-3099 (S.D. Tex.) (same); Manuel v. Monk, C.A. No. H-15-3426
(S.D. Tex.) (dismissed as frivolous and for failure to state a claim); Manuel v. Johnson &

Johnson, C.A. No. H-15-3537 (S.D. Tex.) (dismissed for failure to state a claim); Manuel v.
Manuel, C.A. No. H-16-0080 (S.D. Tex.) (same). All of these lawsuits were dismissed prior
to plaintiff’s filing of the instant lawsuit. Plaintiff’s complaint does not demonstrate that he
was in imminent danger of serious physical injury at the time it was filed, and he may not
proceed in forma pauperis.
In the alternative, or to any extent plaintiff is not currently a prisoner for purposes of
sections 1915 and 1915A, his complaint fails to state a viable claim for which relief can be
granted under section 1983. Plaintiff complains that he was denied leave to do legal research
off-premises for his lawsuit in C.A. No. H-15-3426, and that the lawsuit was dismissed.
Construed liberally, his complaint raises a claim for denial of access to the courts. The Court
notes that plaintiff’s lawsuit in C.A. No. H-15-3426 was dismissed as frivolous and for
failure to state a claim on August 9, 2016. An inmate who alleges the denial of his right of
access to the courts must demonstrate a relevant, actual injury stemming from the defendant’s
allegedly unconstitutional conduct. Lewis v. Casey, 518 U.S. 343 (1996). This requires the
inmate to allege that his ability to pursue a non-frivolous, arguable legal claim was hindered.
Brewster v. Dretke, 587 F.3d 764, 769 (5th Cir. 2009). Plaintiff fails to show that his
dismissed lawsuit raised a viable, non-frivolous claim that he was unable to raise due to lack
of access to a public law library.

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The lawsuit is DISMISSED WITHOUT PREJUDICE pursuant to section 1915(g),
subject to plaintiff’s payment of the full $400.00 filing fee within twenty-eight days from
date of this dismissal. In the alternative, this lawsuit is DISMISSED WITH PREJUDICE for
failure to state a viable claim for which relief can be granted under section 1983. Any and
all pending motions are DENIED AS MOOT.
Signed at Houston, Texas, on August 26, 2016.

Gray H. Miller
United States District Judge

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