Diaz v. A.M. Stringfellow Unit, et al.
ORDER DENYING IFP AND ORDER OF DISMISSAL - ORDER DENYING 2 Motion for Leave to Proceed in forma pauperis; DENYING as moot 3 Motion for relief; DENYING as moot 4 Motion to Appoint Counsel. Signed by Judge Robert Pitman. (rg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
JIMMY DIAZ #1737301
A.M. STRINGFELLOW UNIT, et al.
CIVIL NO. SA-15-CA-694-RP
ORDER DENYING IFP
AND ORDER OF DISMISSAL
Before the Court is the above-referenced civil-rights complaint. Under the Prison Litigation
Reform Act, a prisoner cannot bring a new civil action or appeal a judgment in a civil action in
forma pauperis if he or she has three or more times in the past, while incarcerated, brought a civil
action or appeal in federal court that was dismissed because it was frivolous, malicious, or failed to
state a claim upon which relief may be granted. The only exception to this is if the prisoner is in
“imminent danger of serious physical injury.” See 28 U.S.C. § 1915(g). A prisoner who is not
proceeding in forma pauperis may file a new civil action or appeal even if that prisoner has three or
more dismissals described in section 1915(g). Regardless of whether a prisoner proceeds in forma
pauperis in a civil case, if at any time the prisoner’s case is dismissed as frivolous or malicious, or
for failure to state a claim, the dismissal will count against the prisoner for purposes of the threedismissal rule.
While incarcerated, Plaintiff has filed at least three civil actions or appeals that have been
dismissed as frivolous, as malicious, or for failure to state a claim. See Diaz v. Mings, et al.,
No. 1:04-cv-673-SS (W.D. Tex. June 16, 2005) (dismissed as frivolous); Diaz v. Basse, et al.,
2:13-cv-112 (N.D. Tex. Aug. 20, 2013) (dismissed for failure to state a claim); Diaz v. Dockery,
2:13-cv-111 (N.D. Tex. Sept. 5, 2013) (dismissed as frivolous and for failure to state a claim); Diaz
v. McDuffie, et al., 2:13-cv-80 (N.D. Tex. Feb. 25, 2014) (dismissed as frivolous). Therefore,
Plaintiff may not file another civil action in forma pauperis while incarcerated unless Plaintiff is in
“imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). Plaintiff’s complaint does not
meet that standard.
It is therefore ORDERED that Plaintiff is DENIED leave to proceed in forma pauperis, and
his complaint is DISMISSED WITHOUT PREJUDICE pursuant to the three-dismissal rule of 28
U.S.C. § 1915(g). Plaintiff’s complaint may be reinstated only if the full filing fee of $400 is paid
simultaneously with the filing of a motion to reinstate. Plaintiff’s motions for relief (Document 3)
and for appointment of counsel (Document 4) are DENIED as moot.
SIGNED on August 17, 2015.
ROBERT L. PITMAN
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?