Opinion
No. 3:02-CV-2444-N
April 3, 2003
FINDINGS. CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions and Recommendation of the United States Magistrate Judge follow:
FINDINGS AND CONCLUSIONS
Plaintiff, an inmate confined in the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID), filed this action pursuant to 42 U.S.C. § 1983. Plaintiff seeks leave to proceed in forma pauperis under the provision of 28 U.S.C. § 1915. The Court finds Plaintiff's motion to proceed in forma pauperis should be denied.
Title 28 U.S.C. § 1915 (g) provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
Plaintiff has filed numerous previous actions in federal court. On April 12, 2000, the United States Court of Appeals for the Fifth Circuit found that Plaintiff was barred by three strikes. See Henderson v. County Criminal Court, et al., No. 99-11167 (5th Cir. April 12, 2000) (unpublished opinion attached as exhibit 1). The Fifth Circuit concluded that at least three of Plaintiff's prior civil rights actions and appeals, each filed while he was incarcerated, had been dismissed as frivolous. See id. The Fifth Circuit imposed a bar under § 1915(g). Plaintiff did not challenge the finding that he was barred by three strikes. On May 4, 2000, mandate issued. See Docket Sheet for Appeal No. 99-11167 (attached as exhibit 2); see also Henderson v. Dallas County Jail, et al., 3:00-CV-1858-L (N.D. Tex. order dated Aug. 31, 2000, and judgment entered Jan. 25, 2001) (referencing Fifth Circuit's opinion imposing bar and dismissing petition on three strikes).
Plaintiff alleges his civil rights have been violated because his conviction for aggravated assault was unlawful. His complaint does not state that he is imminent danger of serious physical injury. On February 11, 2003, Plaintiff filed a motion alleging he is in imminent danger of serious physical injury because he is being physically imprisoned and because he has been transferred to the Roach Unit where he has been placed in work status. Plaintiff states he should not be placed in work status because he has irreparable nerve damage and irreparable spinal column damage.
The Court finds Plaintiff's claim that his imprisonment itself places Plaintiff in imminent danger of serious physical injury frivolous. The Court notes Plaintiff has been imprisoned since at least 1999. (See attachments to complaint). Plaintiff has not shown he has suffered serious bodily injury as a result of that imprisonment.
Further, a determination as to whether a prisoner is in imminent danger must be made as of the time that he seeks to file IFP his complaint or notice of appeal. See Choyce v. Dominguez, 160 F.3d 1068, 1070 (5th Cir. 1998). As the Fifth Circuit stated in Banos v. O'Guin, 144 F.3d 883 (5th Cir. 1998):
The plain language of the statute leads us to conclude that a prisoner with three strikes is entitled to proceed with his action or appeal only if he is in imminent danger at the time that he seeks to file his suit in district court or seeks to proceed with his appeal or files a motion to proceed IFP.Id. at 884 (emphasis added).
In this case, at the time Plaintiff filed his complaint, he was incarcerated in the Dawson State Jail in Dallas, Texas. Plaintiff was later transferred to the Roach Unit of the TDCJ in Childress, Texas. Plaintiff claims he was placed in imminent danger of serious physical injury at the Roach Unit because that Unit placed him on work status. Plaintiff therefore has failed to show he was in imminent danger at the time he filed his complaint, as required for a finding of imminent danger under § 1915(g). See Choyce, 160 F.3d at 1070. The Court recommends that Plaintiff's motion to proceed in forma pauperis be DENIED.
RECOMMENDATION:
For the foregoing reasons, the Court recommends that the District Court deny Plaintiff leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 (g). The Court further recommends that the District Court dismiss this action pursuant to § 1915(g), unless Plaintiff tenders the $150.00 filing fee to the District Clerk within ten (10) days of the filing of this recommendation.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a true copy of these findings, conclusions and recommendation on Plaintiff. Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must serve and file written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. A party's failure to file such written objections to these proposed findings, conclusions and recommendation shall bar that party from a de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 472 (1985). Additionally, any failure to file written objections to the proposed findings, conclusions and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).
______________________________ PAUL D. STICKNEY UNITED STATES MAGISTRATE JUDGE
EXHIBIT 1
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUITNo. 99-11167
Conference Calendar
ANTONIO RENAULD HENDERSON,
Plaintiff-Appellant,
versus
COUNTY CRIMINAL COURT #7,
Defendant-Appellee.
------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:99-CV-505-D
---------------
April 12, 2000
Before WIENER, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:[* Pursuant to 5th Cir.R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir.R. 47.5.4.]*
Antonio Renauld Henderson, Texas prisoner # 98060475, was a Texas pretrial detainee at the time he filed this 42 U.S.C. § 1983 civil rights action. Henderson does not address the district court's dismissal of his damage claim against the state trial court and judge as frivolous. He argues merely that he is entitled to a trial and to confront the witnesses against him. When an appellant fails to identify any error in the district court's analysis, it is as if the appellant had not appealed that judgment. Brinkmann v. Dallas County Deputy Sheriff Abner, 813 [No. 99-11167 -2-]F.2d 744, 748 (5th Cir. 1987). Although pro se briefs are afforded liberal construction, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), even pro se litigants must brief arguments in order to preserve them. Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993). Because Henderson did not address the district court's dismissal of his damages claims as frivolous, he has abandoned the only issue before this court on appeal. See Searcy v. Houston Lighting Power Co., 907 F.2d 562, 564 (5th Cir. 1990). However, any claim against the state trial court is barred by the Eleventh Amendment. See Washington Legal Foundation v. Texas Equal Access to Justice Foundation, 94 F.3d 996, 1005 (5th Cir. 1996); Farias v. Bexar County Bd., 925 F.2d 866, 875 n. 9 (5th Cir. 1991). Further, the trial judge has judicial immunity from Henderson's damage claim. See Hulsey v. Owens, 63 F.3d 354, 356 (5th Cir. 1995).
Henderson also sought immediate release. Henderson does not address the district court's dismissal of his claim for habeas relief for failure to exhaust available state remedies. Because Henderson did not address the district court's dismissal of his habeas claim, he has abandoned the only issue before this court on appeal, see Searcy, 907 F.2d at 564, and this court need not address it. See Brinkmann, 813 F.2d at 748.
Henderson's appeal is without arguable merit and thus is frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Henderson's appeal is DISMISSED as frivolous. See 5th Cir.R. 42.2. Henderson is cautioned that the district court's dismissal of this action as frivolous counts as a "strike" under § 1915(g) after this court issues its decision dismissing this appeal as frivolous and that the dismissal of this appeal as frivolous also counts as a "strike" under § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996). Henderson accumulated two "strikes" in the district courts dismissal of a previous § 1983 action and this court's dismissal of his appeal as frivolous. See Henderson v. Criminal District Court #3, No. 99-10863 (5th Cir. Feb. 16, 2000) (unpublished). Henderson is advised that he has now accumulated at least three "strikes" under § 1915(g), and he will not be able to proceed IFP in any civil action or appeal filed while he is incarcerated or detained in any facility unless he is under imminent danger of serious physical injury. See § 1915(g).
APPEAL DISMISSED; 28 U.S.C. § 1915 (g) BAR IMPOSED.
EXHIBIT 2 NON-PUBLIC DOCKET FOR Fifth Circuit Court of Appeals
Court of Appeals Docket #: 99-11167 Filed: 10/18/99 Nsuit: 0 Henderson v. County Criminal Ct Appeal from: Northern District of Texas, Dallas
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Lower court information:
District: 0539-3 : 3:99-CV-505-D Ordering Judge: Sidney A Fitzwater, US District Judge Date Filed: 3/9/99 Date order/judgment: 8/10/99 Date NOA filed: 8/23/99
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Fee status: IFP Granted/Fee Paid
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Prior cases: None Current cases: None
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Panel Assignment: Panel: JLW HRD RMP : **/**/** Date of decision: **/**/**
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INTERNAL USE ONLY: Proceedings include all events. 99-11167 Henderson v. County Criminal Ct
ANTONIO RENAULD HENDERSON Antonio Renauld Henderson Plaintiff — Appellant #98060475 [NTC pse] Dallas County Jail
500 Commerce Street Dallas, TX 75202
v.
COUNTY CRIMINAL COURT #7 Defendant — Appellee
INTERNAL USE ONLY: Proceedings include all events. 99-11167 Henderson v. County Criminal Ct
ANTONIO RENAULD HENDERSON
Plaintiff — Appellant
v.
COUNTY CRIMINAL COURT #7
Defendant — Appellee
INTERNAL USE ONLY: Proceedings include all events. 99-11167 Henderson v. County Criminal Ct
10/18/99 1 Prisoner case docketed without counsel. NOA filed by Appellant Antonio Renauld Henderson. (99-11167] (snd)
10/18/99 2 The United States is NOT a party in the case. [99-11167] (snd)
10/18/99 3 Terminate counsel of record status. [99-11167] (snd)
10/19/99 4 Case reviewed by Attorney Advisor — okay to process. [99-11167] Fee or motion for IFP in DC due on 12/13/99 for Antonio Renauld Henderson. (cdd)
10/25/99 5 District Court Order — IFP granted for Appellant Antonio Renauld Henderson. Date Granted: 10/18/99. Initial partial filing fee of $0.00 assessed. [99-11167] Fee ddl satisfied. (anp) [Entry date 10/27/99]
10/27/99 6 Briefing notice issued. [99-11167] A/Pet's Brief due on 12/6/99 for Antonio Renauld Henderson. (lmc)
10/27/99 7 Record requested from district court. [99-11167] ROA due on 11/12/99. (lmc)
10/28/99 8 Record on appeal filed. Vol(s) of Pleadings: 1. [99-11167] RCA ddl satisfied. (sep) [Entry date 10/29/99]
11/26/99 9 Filing letter of Appellant Antonio Renauld Henderson dated 11/22/99 requesting to extend time to file appellant's brief. [1467317-2] [99-11167] (tmr)
11/26/99 10 CLERK Order filed granting appellant's letter filed 11/26/99 to extend time to file Appellant's Brief until 1/5/00 [1467317-2] A/Pet's Brief ddl updated to 1/5/00 for Antonio Renauld Henderson. Copies to all counsel. [99-11167] (mcs) [Entry date 12/01/99]
11/26/99 11 Record on appeal released to Appellant Antonio Renauld Henderson. Volumes: 1. (99-11167] (mcs) [Entry date 12/01/99]
12/21/99 12 Record on appeal returned to 5CCA. Volumes: 1 [99-11167] The record was returned as it was sent to Dawson State Jail instead of Dallas County Jail. Please see the letter dated 12/16/99 from Dawson State Jail in the file folder. (mcs)
12/21/99 13 Record on appeal released to Appellant Antonio Renauld Henderson. Volumes: 1. [99-11167] (mcs)
12/28/99 14 Record on appeal returned to 5CCA. Volumes: 1 [99-11167] Delivery of the ROA was refused. (mcs)
1/5/00 15 Appellant's Brief filed by Appellant Antonio Renauld Henderson. Copies of brief: 4 # of pages: 3. Disk Provided [Y/N]: n Date of COS: 1/3/00 Sufficient [Y/N]: y [99-11167] A/Pet's Brief ddl satisfied. (trm) [Entry date 01/13/00]
1/13/00 16 Briefing Complete. [99-11167] (trm)
1/13/00 17 Pull Report sent to record room. [99-11167] (trm)
1/18/00 18 Quality Control complete, case forwarded for screening. [99-11167] (mlt)
1/26/00 19 Screener submitted to SA. Document(s) sent: record on appeal (1 vol) [1441282-1]. [99-11167] (mgg)
3/28/00 20 Screener returned from SA's office held for Conference. [1581968-1] Classification: 1 With memo [Y/N]?: n [99-11167] (mgg)
4/11/00 21 Conference calendar held. [99-11167] (ymj) [Entry date 04/12/00]
4/11/00 22 Screening credit received. Classification: 1 [99-11167] (ymj) [Entry date 04/12/00] [Edit date 05/01/00]
4/12/00 23 Opinion filed. Issue Mandate due on 5/3/00. [99-11167] (ymj)
4/12/00 24 Judgment entered and filed. [99-11167] (ymj)
4/12/00 25 JS34 termination information. Terminated on the Merits after Submission Without Oral Hearing; Dismissed/Frivolous; Written, Unsigned, Unpublished. JLW; HRD, Authoring Judge; RMP. [99-11167] (ymj)
4/12/00 26 Court imposed sanctions against Henderson. Henderson is advised that he has now accumulated at least three "strikes" under Section 1915(g), and he will not be able to proceed IFP in any civil action or appeal filed while he is incarcerated or detained in any facility unless he is under imminent danger of serious physical injury. [99-11167] [29495-1] (ymj)
4/12/00 27 When the mandate issues, give a copy of the opinoin to CRF to write the District Court Clerks advising of sanctions imposed. [99-11167] (ymj)
5/4/00 28 Mandate issued. Approved BOC Issued (Y/N)?: N [99-11167] Issue Mandate ddl satisfied. (ads)
5/4/00 29 Record on appeal returned to USDC. Volumes of Pleadings: 1. [99-11167] (sds)