Phillips v. Richardson

• Court: District Court, N.D. Texas
• Decided: September 28, 2022
• Docket: 2:20-cv-00195
• Status: Unknown

Opinion

U.S. DISTRICT COURT IN THE UNITED STATES DISTRICT COURT nortnérn DISTRICT OF TEXAS FOR THE NORTHERN DISTRICT OF TEXA$ FILED AMARILLO DIVISION SEP 28 2022 MATTHEW PHILLIPS, § CLERK,US. DISTRICT COURT TDCJ-CID No. 00644019, § pf § Plaintiff, § § 2:20-CV-195-Z-BR v. § § NFN RICHARDSON, et al., § MEMORANDUM OPINION AND ORDER Matthew Phillips, a Texas inmate appearing pro se, sues employees of the Texas Department of Criminal Justice (“TDCJ”’) under 42 U.S.C. § 1983. Plaintiff is confined in the Clements Unit of TDCJ in Amarillo, Texas. Plaintiff has not filed an application to proceed in forma pauperis, nor has he paid the $402.00 filing fee. While incarcerated, Plaintiff has filed at least three prior civil actions that were dismissed as frivolous or for failure to state aclaim. Plaintiff has not shown that at the time of the filing of this lawsuit, he was “under imminent danger of serious physical injury.” Therefore, the Court DISMISSES this action as barred by the three-strike provision of 28 U.S.C. § 1915(g). PLAINTIFF’S ALLEGATIONS Plaintiff alleges Defendants acted with deliberate indifference to Plaintiffs dental-care needs. Specifically, Plaintiff alleges he had several teeth removed and remains in pain. ECF No. 3 at 8. Any treatment provided by Defendants has failed to remedy the pain. /d. The PLRA — enacted on April 26, 1996 — amended 28 U.S.C. § 1915 as it relates to federal civil actions filed by prisoners. Among the changes effected by the PLRA was the inclusion of 28 U.S.C. § 1915(g), also known as the “three-strike” provision. Section 1915(g) precludes a prisoner from bringing a civil action in forma pauperis if on three or more prior occasions, he filed

civil actions or appeals in federal court which were dismissed, either by a district court or appellate court, as being frivolous, malicious, or for failing to state a claim. See Jackson v. Johnson, 475 F.3d 261, 265 (Sth Cir. 2007). When a district court dismisses a case as frivolous or for failure to state a claim, such a dismissal counts as a “strike” under Section 1915(g) once the judgment becomes final. See Adepegba v. Hammons, 103 F.3d 383, 387-88 (Sth Cir. 1996). A district court’s dismissal is final when the prisoner exhausts avenues of appeal or waives any appellate rights. Jd. A prisoner is barred from proceeding in forma pauperis if he is subject to the “three-strike” provision “unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g); see also Banos v. O’Guin, 144 F.3d 883, 884 (Sth Cir. 1998). The complaint must present a claim that the plaintiff is in danger of imminent serious physical injury to overcome the bar. See Carson v. Johnson, 112 F.3d 818, 822-23 (Sth Cir. 1997). In applying the “three-strike” provision of Section 1915(g), a court may consider case dispositions that occurred prior to the effective date of the PLRA. See Adepegba, 103 F.3d at 387-88. A review of the Public Access to Court Electronic Records (“PACER”) and the Sanction Database reflects that Plaintiff has had at least three prior actions dismissed with prejudice as frivolous or for failure to state a claim.' Plaintiff is thus barred from proceeding in forma pauperis. Plaintiff did not even attempt to seek in forma pauperis status for this filing. Plaintiff also fails to meet the very limited exception that he was under imminent danger of serious physical injury at the time he filed this lawsuit. If Plaintiff claims that the failure to receive proper medical treatment places him in imminent danger, he must present medical records or grievances with his Complaint to corroborate his allegations, or he has failed to demonstrate that he was under

' No. 2:08-CV-0225 (N.D. Tex. 2008) (dismissed as frivolous and for failure to state a claim — no appeal taken); No. 2:09-CV-0118 (N.D. Tex. 2009) (dismissed as frivolous and for failure to state a claim — no appeal taken); No. 2:11- CV-0231 (N.D. Tex. 2012) (dismissed for failure to state a claim — no appeal taken).

imminent danger of serious physical injury at the time his lawsuit was filed. See Stone v. Jones, 459 F. App’x 442, 442 (Sth Cir. 2012) (per curiam). Plaintiff's allegations do not contain grievances that the Defendants have deliberately ignored Plaintiff's medical and dental needs. For the above reasons, the Court DISMISSES Plaintiff's Complaint as barred by the Section 1915(g)’s three-strike provision. This dismissal is without prejudice to Plaintiff's right to reopen the case if he pays the $402.00 filing and administrative fees and files a motion to reopen within 30 days of the date of final judgment. SO ORDERED. September Le 2022 Wht fear MATYHEW J. KACSMARYK UNITED STATES DISTRICT JUDGE