Sanchez v. Garret, Shaw, Burwell Parole Committee

Full title: JUAN JORGE SANCHEZ TDCJ-CID #577512 v. GARRET, SHAW, AND BURWELL PAROLE…

Court: United States District Court, S.D. Texas, Corpus Christi Division

Date published: May 18, 2006

C.A. No. C-06-099 (S.D. Tex. May. 18, 2006)

Opinion

C.A. No. C-06-099.

May 18, 2006

MEMORANDUM AND RECOMMENDATION TO DENY PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS AND TO DISMISS ACTION

B. ELLINGTON, Magistrate Judge

Plaintiff, a Texas state prisoner, filed this civil rights action on February 24, 2006 (D.E. 1), and sought leave to proceed in forma pauperis (D.E. 2). For the reasons stated herein, it is respectfully recommended that plaintiff's application to proceed in forma pauperis be denied, and that this case be dismissed without prejudice.

Three strikes rule

Prisoner civil rights actions are subject to the provisions of the Prison Litigation Reform Act (" PLRA), 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); Banos v. O'Guin, 144 F.3d 883, 884 (5th Cir. 1998); 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. Id.

Analysis

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 Sanchez v. U.S. District Court, et al., 5:98cv196 (W.D. Tex. Apr. 15, 1998); Sanchez v. Biery, et al., No. 98-50423(5th Cir. Aug. 25, 1999); Sanchez v. Putska, No. 95-20917 (5th Cir. Mar. 1, 1996); Sanchez v. West, No. 97-40940 (5th Cir. Jun. 16, 1998); Sanchez v. Perez, et al., 99-40543 (5th Cir. Dec. 15, 1999); and Sanchez v. Cockrell, 5:01cv739 (W.D. Tex. Oct. 9, 2001). Plaintiff is now barred from filing a civil rights suit unless he is in imminent danger of physical injury.

In this action, plaintiff complains that he has been unfairly denied parole. He challenges his classification as an aggravated offender, arguing that the jury did not did not make an affirmative finding that he used a weapon during the commission of the offense. He also challenges the four-year set-off, that is, the next time he will be considered for parole, arguing that it is a "prejudicial collusion" between the judge, prosecutor, TDCJ-CID officials, and the Parole Board, to obstruct and hinder the parole process and to deprive him of the equal protection of the law.

Plaintiff has not alleged any facts to suggest that he is in imminent danger of physical injury.

Recommendation

Plaintiff has lost the privilege of proceeding in forma pauperis and he has failed to allege that he is in imminent danger of physical harm. Accordingly, it is respectfully recommended that plaintiff's application for leave to proceed in forma pauperis (D.E. 2) be denied and that this lawsuit be dismissed without prejudice. It is recommended further that plaintiff be permitted to move to reinstate the lawsuit, but only if the $250.00 filing fee¹ is paid simultaneously with the motion to reinstate.

1 Plaintiff's lawsuit was filed before the April 9, 2006, filing fee increase to $350.00.