David Kent Fitch v. United States Department of Justice, et al.

Opinion

: Southern District of Texas ENTERED July 15, 2026 UNITED STATES DISTRICT COURT Nathan Ochsner, Clerk SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION DAVID KENT FITCH, § (TDCI # 02444702), § . § □ Plaintiff, § § vs. § CIVIL ACTION NO. H-26-5138 UNITED STATES DEPARTMENT OF § JUSTICE, et al., § § Defendants. § MEMORANDUM OPINION AND ORDER David Kent Fitch, (TDCJ #02444702), is currently incarcerated at the Pack I Unit of the Texas Department of Criminal Justice—Correctional Institutions Division. Proceeding pro se, he filed a complaint: seeking enforcement of the Freedom of Information Act (FOJA), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. §552a. (Dkt. 1). Specifically, he seeks an injunction to compel the United States Marshals Service to produce “attorney log-in records at the Henderson County Jail, □

located at 206 N. Murchison St, Athens, TX 75751” for two. dates in 2022. (Dkt. 1- 2, p. 2). Fitch neither paid the applicable filing fee for such an action nor moved to proceed in forma pauperis. But because Fitch is not entitled to proceed in forma pauperis, his action is dismissed as explained below.

I. DISCUSSION

Fitch is incarcerated, so his action is governed by the Prison Litigation Reform Act (PLRA), which was enacted, in part, to prevent prisoners from abusing the privilege of proceeding in forma pauperis. See Coleman v. Tollefson, 575 U.S. 532, 535 (2015) (citing Jones v. Bock, 549 U.S. 199, 204 (2007)). Under the “three- strikes rule” established in the PLRA, a prisoner may not bring a civil action in forma

pauperis if, while he has been incarcerated, three or more of his civil actions or appeals have been dismissed as frivolous, malicious, or for failing to state a claim

upon which relief may be granted, unless he is in “imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). ‘This bar applies to all civil actions, including those under the FOIA and the Privacy Act. See, e.g., Wright v. Curry, 122 F. App’x 724, 725—26 (Sth Cir. 2004) (per curiam) (applying § 1915(g) bar in FOIA action); Cabrera v. U.S. Dep’t of Just., 537 F. App’x 387, 388 (Sth Cir. 2013) (per curiam) (affirming the dismissal of an FOIA action as barred by strikes and imposing a strike for the appeal); Stewart v. Hardy, No. 1:06-cv-170, 2006 WL 2171021, at (E.D. Tex. July 27, 2006) (dismissing FOIA action as barred by strikes). Publicly available court records reflect that, while-Fitch has been incarcerated, he has filed at least three civil actions that the courts have dismissed as frivolous, malicious, or for failing to state a claim upon which relief could be granted. See Fitch v. Adams, et al., No. 1:05-cv-00255-RC-ESH (E.D. ‘Tex. Mar. 15, 2006) 2/5

(dismissed as frivolous due to failure to exhaust administrative remedies);! Fitch v. Adams, et al., No. 3:05-cv-220 (S.D. Tex. Apr. 22, 2008) (dismissed as legally frivolous); Fitch v. Lappin, et al., No. 1:09-cv-00583-JRN (W.D. Tex. Feb. 22, 2010) (dismissed as frivolous due to failure to exhaust administrative remedies). As

a result of these prior filings, Fitch may not proceed with this civil action in forma pauperis unless his pleadings show that he is in imminent danger of serious physical injury. See 28 US.C. § 1915(g); Bafios v. O’Guin, 144 F.3d 883, 884 (5th Cir. 1998) (per curiam). . The imminent-danger exception “operates as a safety valve to ensure that, despite the filing of frivolous lawsuits in the past, an. abusive inmate facing future imminent serious physical injury by prison officials will still be able to pursue a judicial remedy to prevent such injury.” Castillo v. Bickham, No. 14-2917, 2015 WL 251708, at *3 (E.D. La. Jan. 20, 2015). To fall within thé exception, the inmate must be in imminent danger of serious physical injury when‘he files his complaint in the district court. See Bafios, 144 F.3d at 884-85. The threat of injury must be “real and proximate,” Ciarpaglini v. Saini, 352 F.3d:328, 330 (7th Cir. 2003), and the inmate must be facing “a genuine emergency” in which “time is pressing.”

i ercene exhausting administrative remedies renders the action frivolous and subject to dismissal for failing to state a claim upon which relief can be a Emmett v. Ebner, 423 F. App’x 492, 493-94 (Sth Cir. 2011).

Heimermann v. Litscher, 337 F.3d 781, 782 (7th Cir. 2003) (per curiam); see also Abdul-Akbar v. McKelvie, 239 F.3d 307, 313 (3d Cir. 2001) (“‘Imminent’ dangers are those dangers which are about to occur at any moment or are impending[, and] [s]omeone whose danger has passed cannot reasonably be described as someone who ‘is’ in danger, nor can that past danger reasonably be described as ‘imminent.’”). Allegations of past harm do not trigger the exception. See Choyce v. Dominguez, 160 F.3d 1068, 1070 (Sth Cir. 1998) (per curiam); Stine v. Fed. Bureau of Prisons Designation & Sentence Computation Uni, No. 3:13-cv-4253-B, 2013 WL 6640391, at (N.D. Tex. Dec. 17, 2013). In addition, “(prisoners cannot exempt themselves from the operation of § 1915(g) by claiming that they □ imminent danger at all times and under all circumstances.” Morris v. Walls, No. 19- cv-0006-DC, 2019 WL 12336299, at *3 (W.D. Tex. Jan. 14, 2019); see also Abdul- Akbar, 239 F.3d at 315 n.1 (generalized coernlane of ongoing harassment, conspiracies to harm the plaintiff, or other forms of retaliation are insufficient to show an imminent danger of serious physical injury. for purposes of § 1915(g)). Moreover, the threatened imminent harm must be related to the allegations in the plaintiff's complaint. See, e.g., Judd v. Fed. Election Comm’n, 311 F. App’x 730, 731 (Sth Cir. 2009) (per curiam); Stine, 571 F. App’x at 354 (rejecting aclaim of imminent danger when the plaintiff did not “plausibly plead any connection between the alleged imminent danger” and his claims). 4/5

Fitch’s complaint does not allege facts showing that he is in imminent danger of serious physical injury from the delays in processing his FOIA claims. He therefore does not fall within the imminent-danger exception to the three-strikes rule and is not entitled to proceed in forma pauperis in this action. II. CONCLUSION a ° Based on the foregoing, the Court ORDERS as follows: □ 1. The civil action filed by David Kent Fitch, (Dkt. 1), is DISMISSED without prejudice pursuant to 28 U.S.C. § 1915(g). 2. All pending motions are DENIED as moot. 3. Fitch may move to reinstate this case only if he pays the full amount of the filing fee for a civil action ($405.00) within 30 days from the date of this Order. The Clerk will provide a copy of this Order to. the plaintiff. The Clerk will also provide a copy of this order to the Manager of the Three Strikes List for the Southern District of Texas at: Three Strikes@txs.uscourts.gov. SIGNED at Houston, Texas on 4, 1} : oe , 2026.

DAVID HITINER UNITED STATES DISTRICT JUDGE

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