Elliott v. Collins
MEMORANDUM OPINION AND ORDER granting 2 APPLICATION to Proceed In Forma Pauperis, dismissing with prejudice 1 Complaint. Email sent to Manager of Three Strikes List. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
November 07, 2017
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
KENDRICK LAVAR ELLIOTT,
JUDGE DENISE COLLINS,
David J. Bradley, Clerk
CIVIL ACTION NO. H-17-3336
MEMORANDUM OPINION AND ORDER
The plaintiff, Kendrick Lavar Elliott, is currently in custody
at the Harris County Jail.
Elliott has filed a Prisoner's Civil
Rights Complaint under 42 U.S. C.
1983 ("Complaint") (Docket Entry
challenging his detention without bond by a state court
Elliott has also submitted an Application to
Proceed Without Prepayment of Fees (Docket Entry No. 2).
this case is governed by the Prison Litigation Reform Act
"PLRA") , the court is required to scrutinize the claims and dismiss
in whole or in part,
if it determines that the
Complaint "is frivolous, malicious, or fails to state a claim upon
which relief may be granted"
or "seeks monetary relief
defendant who is immune from such relief."
After considering all of the pleadings the court concludes that
this case must be dismissed for
reasons explained briefly
Elliott is presently in custody at the Harris County Jail
pending criminal charges for failure to register as a sex offender
in cause number 1572703. 1
presides over a
Elliott sues Judge Denise Collins, who
state district court in Harris County,
imprisonment" by ordering him held without bond for over a year,
from February 2016 through April 2017, in connection with another
criminal case that was pending against him for failure to register
as a sex offender in cause number 1499861, which was ultimately
Invoking 42 U.S.C.
Elliott appears to seek
damages for his wrongful imprisonment. 4
Court records show that Elliott has made identical allegations
See Elliott v. Collins, Civil No. H-17-1056 (S.D. Tex.).
That case was dismissed on April 19, 2017, after the district court
See Harris County District Clerk's Office website, located
at: http://www.hcdistrictclerk.com (last visited Nov. 3, 2017).
Complaint, Docket Entry No. 1, pp. 3-4.
Id. at 4. Court records reflect that the charges in cause
number 1499861 were dismissed on March 29, 2017, after Elliott pled
guilty in a related case (cause number 1499673). See Harris County
http://www.hcdistrictclerk.com (last visited Nov. 3, 2017).
Complaint, Docket Entry No. 1, p. 4.
found that Judge Collins was entitled to absolute judicial immunity
from Elliott's claims.
See Memorandum and Order of Dismissal,
Civil No. H-17-1056, Docket Entry No. 4, pp. 2-3.
A prisoner civil rights complaint is considered "malicious"
for purposes of
the PLRA if
it duplicates allegations made in
lawsuit by the same plaintiff.
See Pittman v.
allegations in Elliott's pending Complaint against Judge Collins
clearly duplicate those presented by him previously in Civil Action
Because Elliott has made the same claims in a
previous unsuccessful lawsuit, the court concludes that the pending
Complaint is subject to dismissal as both frivolous and malicious
under 28 U.S.C.
84 9 (5th Cir. 198 9)
See Wilson v. Lynaugh, 878 F.2d 846,
(holding that a duplicative complaint may be
dismissed as frivolous if it seeks to relitigate claims which have
already been unsuccessfully litigated by the plaintiff) .
Alternatively, Elliott cannot prevail because,
for the same
reasons outlined in Civil No. H-17-1056, Judge Collins is entitled
to judicial immunity from suit for actions taken in her judicial
See Mireles v. Waco, 112 S. Ct. 286, 288 (1991)
Mitchell v. Forsyth, 105 S. Ct. 2806, 2815 (1985)); see also Boyd
v. Biggers, 31 F.3d 279, 284 (5th Cir. 1994).
reason, the Complaint must be dismissed under
For this additional
1915A(b) because it
seeks monetary damages from a defendant who is immune from such
Conclusion and Order
Based on the foregoing, the court ORDERS as follows:
The Application for Leave to Proceed Without
Prepayment of Fees (Docket Entry No. 2) is GRANTED.
Officials at the Harris County Jail are directed to
deduct the filing fee for indigent litigants
($350.00) from the Inmate Trust Fund account of
Kendrick Lavar Elliott (SPN #01877025) in periodic
installments pursuant to 28 U.S.C. § 1915(b), and
forward those funds to the Clerk of Court until the
entire fee is paid.
Elliott's Prisoner's Civil Rights Complaint under
42 U.S.C. § 1983 (Docket Entry No. 1) is DISMISSED
The dismissal will count as a strike for purposes
of 28 U.S.C. § 1915 (g).
The Clerk is directed to provide a copy of this Memorandum
Opinion and Order to the plaintiff.
The Clerk will also provide a
copy of this order by regular mail or electronic mail to:
Harris County Jail Inmate Trust Fund, Attn: Sergeant Tom Katz, 1200
Baker Street, Houston, Texas 77002, phone: 713-755-8436, fax: 713755-4546;
SIGNED at Houston, Texas, on this 7th day of November, 2017.
UNITED STATES DISTRICT JUDGE
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