Lopez Ortiz v. Livingston et al

Filing 4

ORDER OF DISMISSAL of case without prejudice; DENYING AS MOOT 2 MOTION/APPLICATION to Proceed In Forma Pauperis. Case terminated on 12/30/2016.(Signed by Judge Gray H Miller) Parties notified.(rkonieczny, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MARCUS LOPEZ ORTIZ,

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Plaintiff,
v.
BRAD LIVINGSTON, ET AL.,
Defendants.

CIVIL ACTION NO. H-16-3749

ORDER OF DISMISSAL
Plaintiff, a state inmate proceeding pro se and seeking leave to proceed in forma
pauperis, filed this section 1983 lawsuit against prison officials for alleged violations of his
constitutional rights.
The Court notes that plaintiff recently filed a complaint raising these same claims in
Ortiz v. Livingston, C.A. No. H-16-3449 (S.D. Tex. 2016). The Court dismissed that lawsuit
pursuant to the “three strikes” provision of section 1915(g), and found that plaintiff did not
demonstrate that he was in imminent danger of serious physical injury at the time the
complaint was filed. The Court further noted that at least one federal district court had
entered monetary sanctions and a preclusion order against him for his abuse of the judicial
system, citing Ortiz v. Livingston, C.A. No. 3:13-CV-0330 (S.D. Tex. 2013), and that the
monetary sanctions remained unpaid.

Because the instant lawsuit raises the same claims as were raised in C.A. No. H-163449, the instant lawsuit is DISMISSED WITHOUT PREJUDICE AS MALICIOUS AND
DUPLICATIVE. Although plaintiff argues that his earlier lawsuit was dismissed “without
prejudice,” it was dismissed without prejudice subject to his payment of the full filing fee and
prior sanctions. Plaintiff is not entitled to continue re-filing his lawsuit in hopes that a
different court might grant him leave to proceed in forma pauperis.
This case is FURTHER DISMISSED WITHOUT PREJUDICE pursuant to the
preclusion order entered in Ortiz v. Livingston, C.A. No. 3:13-CV-0330 (S.D. Tex. 2013).
To the extent plaintiff seeks authorization under the preclusion order to file the instant
lawsuit and without payment of the monetary sanctions, his request is DENIED.
This case is FURTHER DISMISSED WITHOUT PREJUDICE pursuant to the “three
strikes” provision of section 1915(g). All pending motions are DENIED AS MOOT.
Plaintiff may move to reinstate this case upon payment of the full $400.00 filing fee and
proof of payment of all outstanding monetary sanctions within twenty-eight days from date
of this order. Upon expiration of the twenty-eight days, plaintiff may file a lawsuit raising
these claims only upon payment of the full filing fee and proof that all prior monetary
sanctions entered against him have been paid.
Signed at Houston, Texas on December 30, 2016.

Gray H. Miller
United States District Judge