Myers v. Parole Board/Unknown

• Court: District Court, S.D. Texas
• Decided: November 21, 2019
• Docket: 2:19-cv-00273
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT November 21, 2019 SOUTHERN DISTRICT OF TEXAS David J. Bradley, Clerk CORPUS CHRISTI DIVISION

TOWNSEL MYERS, § § Plaintiff, § VS. § CIVIL ACTION NO. 2:19-CV-273 § PAROLE BOARD/UNKNOWN, et al, § § Defendants. §

ORDER OF DISMISSAL

Plaintiff Townsel Myers, currently detained at the East Texas Treatment Facility, has filed this pro se prisoner civil rights complaint pursuant to 42 U.S.C. § 1983. D.E. 1. As of the time he filed his complaint, Plaintiff was confined at the Nueces County Jail in Corpus Christi, Texas. On October 24, 2019, United States Magistrate Judge Jason B. Libby granted Plaintiff leave to proceed in forma pauperis (“IFP”) in this action. D.E. 13. However, as discussed below, a review of Court records reveals that Plaintiff is ineligible to proceed IFP and must pay the full filing fee to proceed. Prisoner civil rights actions are subject to the provisions of the Prison Litigation Reform Act, including the three strikes rule, 28 U.S.C. § 1915(g). The three strikes rule provides that a prisoner who has had, while incarcerated, three or more actions or appeals dismissed as frivolous, malicious, or for failure to state a claim upon which relief can be granted, is prohibited from bringing any more actions or appeals in forma pauperis. 28 U.S.C. § 1915(g); Baños v. O’Guin, 144 F.3d 883, 884 (5th Cir. 1998) (per curiam); Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). The three strikes rule provides an exception permitting prisoners who are under imminent danger of physical harm to proceed without prepayment of the filing fee. 28 U.S.C. § 1915(g); Baños, 144 F.3d at 884.

Plaintiff has had at least three prior actions dismissed as frivolous, malicious, or for failure to state a claim upon which relief can be granted. See Myers v. Texas Dep’t of Criminal Justice, No. 4:17-cv-284 (S.D. Tex. Jan. 31, 2017) (dismissed as frivolous and for failure to state a claim); Myers v. Does, No. 4:14-cv-966 (S.D. Tex. May 19, 2014) (dismissed as frivolous); Myers v. UTMB-MHC, No. 2:04-cv-61 (S.D. Tex. Mar. 19,

2004) (dismissed for failure to state a claim based on the failure to exhaust administrative remedies).1 Therefore, Plaintiff is barred from filing this civil suit IFP unless he is in imminent danger of physical injury. This Court must assess whether Plaintiff is exposed to imminent danger of serious injury at the time that he filed his motion. Choyce v. Dominguez, 160 F.3d 1068, 1071

(5th Cir. 1998) (per curiam) (citing Baños, 144 F.3d at 884–85). To satisfy the imminent danger requirement of § 1915(g), the threat must be “real and proximate.” Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003) (citation omitted). In addition, the harm must be imminent or occurring at the time the complaint is filed, and the plaintiff must refer to a “genuine emergency” where “time is pressing.” Heimermann v. Litscher, 337 F.3d 781,

782 (7th Cir. 2003) (per curiam) (citation omitted). Congress intended a safety valve to

1 The Fifth Circuit Court of Appeals has held that a dismissal for failure to exhaust administrative remedies counts as a strike. See, e.g., Emmett v. Ebner, 423 F. App’x 492, 494 (5th Cir. 2011) (per curiam). prevent impending harms, not those injuries which allegedly had already occurred. Abdul—Akbar v. McKelvie, 239 F.3d 307, 315 (3d Cir. 2001) (en banc). In this action, Plaintiff asserts that Defendants have set forth discriminatory parole conditions that interfered with his ability to attend religious services. D.E. 1. There is no indication that Plaintiff is exposed to imminent danger of serious injury. Because he has failed to allege that he was in imminent danger of physical harm at the time he filed the complaint, he is barred from proceeding IFP. Accordingly, the Order entered on October 24, 2019 (D.E. 13) is hereby VACATED. Plaintiff is not eligible to proceed IFP, and his complaint is DISMISSED. The Clerk of Court is DIRECTED to send 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” and is further DIRECTED to CLOSE this case. Plaintiff may move to reinstate this action within thirty (30) days of the date of the entry of this Order, but only if the appropriate filing fee is paid simultaneously with the motion to reinstate. ORDERED this 21st day of November, 2019.

UNITED STATES DISTRICT JUDGE

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