Opinion
No. 3:05-CV-1318-K.
August 17, 2005
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court in implementation thereof, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, are as follows:
FINDINGS AND CONCLUSIONS:
Before the Court for consideration are Plaintiff Daniel Sheehan's complaint and motions for leave to proceed in forma pauperis (IFP) and for appointment of counsel, filed on June 27, 2005. Also before the Court is Plaintiff's Supplemental Affidavit in support of his IFP request filed on July 14, 2005.
Plaintiff is currently a resident of Longview, Texas. His full name is Daniel John Sheehan. (See Plaintiff's motion for appointment of counsel and attachment to his Affidavit in Support).
It appears that Plaintiff filed the complaint in this district, rather than in the Eastern District of Texas in which he resides due to the many frivolous actions he previously filed in the latter district.
Although the Prisoner Litigation Reform Act (PLRA) does not apply to this case, since Plaintiff is no longer confined as a prisoner, he has previously filed more than forty cases in federal courts within the State of Texas, many of which were filed while he was an inmate. See Attachment I.
The actions which Plaintiff filed while incarcerated where submitted under prisoner numbers 426771 and 238161, and/or SID number 10028573.
As a result of the frivolous nature of his civil rights action, Plaintiff was repeatedly denied leave to proceed without the payment of the required filing fee pursuant to the "three-strike provision" in those actions commenced while he was a confined person. See 28 U.S.C. § 1915(g); Daniel John Sheehan v. Bozarth, No. 98-50972 (5th Cir. June 16, 1999) (unpublished per curiam) (Attachment II); Daniel Sheehan v. Woods, et al., 1:03cv0889 (E.D. Tex., Beaumont Div., Sep. 29, 2003) (Attachment III). In addition the Southern District of Texas found that he had abused the judicial system and imposed a monetary sanction.Sheehan v. Gilbert, et al., H-98-2996 (S.D. Tex., Houston Div., Order filed on Aug. 17, 1999) (No. 4:98cv2996, as reflected on the U.S. Party/Case Index) (Attachment IV). Finally the Fifth Circuit has warned Plaintiff of possible sanctions to which he may be subject for filing vexatious, abusive actions.
The sanction order provided that "[u]ntil [Plaintiff] pays all sanctions assessed against him and unless he receives specific permission from a judicial officer, Sheehan may file no more civil actions as a pauper in this court." Sheehan, H-98-2996.
Notwithstanding the fact that the PLRA does not apply, this court has the inherent authority to ensure that the process of the court is not abused. Chambers v. NASCO, Inc., 501 U.S. 32, 43-45, 111 S.Ct. 2123, 2132-33, 115 L.Ed.2d 27 (1991); Toon v. Wackenhut Corrections Corp., 250 F.3d 950, 952 (5th Cir. 2001). Moreover, federal courts in Texas honor sanctions imposed by another federal court in Texas against a prisoner litigant. See MISC. ORDER 48 (N.D. Tex.); Balawajder v. Scott, 160 F.3d 1066, 1067 (5th Cir. 1999) (upholding dismissal of action by district court for Southern District of Texas, based on a sanction order imposed by Western District of Texas). The proper administration of justice requires that courts apply the above rules to prisoner and nonprisoner litigants alike. See Moody v. Behjoo, 3:04mc107-H (N.D. Tex., Dallas Div., Jan. 25, 2005) (adopting findings and conclusions and recommendation of the magistrate judge filed on January 11, 2005) (denying non-prisoner litigant's motion for leave file complaint because of failure to satisfy court-imposed sanctions, including monetary and leave-to-file requirement, received in the Fifth Circuit Court of Appeals and Eastern and Southern Districts while a prisoner); see also Holden v. Simpson Paper Co., 2002 WL 31115137, *1 (5th Cir. 2002) (unpublished per curiam) (affirming dismissal of action because of plaintiff's repeated refusal to comply with district court's orders to pay costs assessed against her in a prior lawsuit against the same defendant).
Miscellaneous Order 48 provides that courts in the Northern District of Texas must "observe and enforce sanctions imposed by another federal court in Texas involving Texas Department of Criminal Justice inmates who file pleadings in this District, unless the sanctioned inmate establishes a change in circumstances or otherwise demonstrates that enforcing such previously imposed sanctions would be unjust."
In light of Plaintiff's lengthy and notorious history of filing frivolous lawsuits in the federal courts, his request to proceed in forma pauperis in this case should be denied.
Alternatively, in light of the fact that Plaintiff has began receiving Social Security benefits in the amount of $884.00 per month, and has a current checking and savings account balances totaling $388.00 (see Plaintiff's affidavit filed on July 14, 2005, at 2-3), the court should find that he is not a person entitled to proceed without payment of the $250.00 filing fee. RECOMMENDATION:
For the foregoing reasons, it is recommended that the District Court deny Plaintiff's motion for leave to proceed in forma pauperis.
It is further recommended that the District Court dismiss this action without prejudice unless Plaintiff tenders the $250.00 filing fee to the District Clerk within ten (10) days of the date on which the District Court's order denying his motion to proceed in forma pauperis is filed.
A copy of this recommendation will be mailed to Plaintiff.ATTACHMENT I Civil Name Search Results 51 Total Party matches for selection SHEEHAN, DANIEL for FIFTH CIRCUIT Search Complete Tue Aug 16 07:18:12 CDT 2005 Selections 1 through 51 (Page 1) Download (1 pages $0.00) Name Court Case No. Filed NOS Closed txndce 2:1998cv00152 txsdce 2:1992cv00180 txsdce 2:1999cv00297 txwdc 1:1998cv00321 txedce 1:2003cv00889 txndce 3:2005cv01318 txsdce 4:2003cv01708 txsdce 4:2003cv01724 txsdce 4:2005cv01907 txedce 6:2005cv00210 txsdce 2:1997cv00339 txedce 6:1999cv00386 txsdce 2:1997cv00582 txsdce 4:1997cv01927 txsdce 2:1995cv00619 txedce 4:1995cv00048 txsdce 2:2002cv00146 txwdc 1:1997cv00613 txedce 6:1998mc00014 txsdce 2:1997cv00136 txwdc 1:1997cv00199 txedce 6:1989cv00255 txsdce 2:1997cv00255 txsdce 2:1996cv00258 txsdce 7:1999cv00263 txedce 6:1999cv00278 txwdc 1:1998cv00309 txedce 6:1997cv00323 txsdce 2:1991cv00329 txedce 6:1992cv00344 txsdce 2:2000cv00384 txsdce 2:1997cv00400 txsdce 2:1997cv00401 txedce 6:1988cv00453 txedce 6:1996cv00486 txedce 6:1999cv00498 txedce 6:1992cv00535 txedce 1:2002cv00778 txwdc 1:1997cv00883 txedce 6:1996cv00887 txwdc 1:1997cv00917 txedce 6:1997cv01022 txedce 6:1997cv01036 txwdc 5:1991cv01097 txwdc 5:1991cv01180 txedce 1:2003cv01444 txsdce 4:1992cv02310 txsdce 4:1998cv02996 txsdce 4:1999cv03809 1 SHEEHAN, DANIEL 04/20/1998 550 06/01/1998 SHEEHAN vs. HOUSKA, ET AL 2 SHEEHAN, DANIEL 07/06/1992 550 01/06/1993 SHEEHAN 3 SHEEHAN, DANIEL 08/02/1999 530 08/24/1999 SHEEHAN vs. TEXAS DEPARTMENT OF 4 SHEEHAN, DANIEL 05/21/1998 999 06/17/1998 SHEEHAN vs. BUSH 5 SHEEHAN, DANIEL 09/25/2003 530 09/29/2003 CLEMENTS, ET AL vs. WOODS, ET AL 6 SHEEHAN, DANIEL 06/27/2005 440 SHEEHAN vs. STATE OF TEXAS 7 SHEEHAN, DANIEL 05/15/2003 530 11/12/2003 SHEEHAN vs. COCKRELL 8 SHEEHAN, DANIEL 05/19/2003 555 06/23/2003 SHEEHAN vs. TATE, ET AL 9 SHEEHAN, DANIEL 04/06/2005 530 06/01/2005 SHEEHAN vs. COCKRELL 10 SHEEHAN, DANIEL. 06/08/2005 530 SHEEHAN vs. DIRECTOR 11 SHEEHAN, DANIEL. 06/16/1997 555 08/06/1997 SHEEHAN vs. CRAMER, ET AL 12 SHEEHAN, DANIEL. 07/07/1999 530 07/28/1999 SHEEHAN vs. TDCJ-ID 13 SHEEHAN, DANIEL. 10/30/1997 555 03/25/1998 SHEEHAN vs. SCOTT, ET AL 14 SHEEHAN, DANIEL. 05/30/1997 555 12/09/1997 SHEEHAN, ET AL vs. SCOTT, ET AL 15 SHEEHAN, DANIEL J 11/27/1995 530 12/07/1995 SHEEHAN vs. SALDANA 16 SHEEHAN, DANIEL J, JR 07/07/1997 190 10/04/1999 AEROVIAS vs. PREVOISIN, ET AL 17 SHEEHAN, DANIEL J, JR 04/09/2002 365 05/13/2002 GARCIA, ET AL vs. AMERICAN HOME PROD, ET AL 18 SHEEHAN, DANIEL J. 09/02/1997 550 03/02/1998 SHEEHAN vs. MARTINEZ 19 SHEEHAN, DANIEL JOHN 03/03/1998 530 03/03/1998 SHEEHAN vs. JOHNSON 20 SHEEHAN, DANIEL JOHN 03/04/1997 550 03/25/1998 DANIEL JOHN SHEEHAN vs. G. SMITH, ET AL 21 SHEEHAN, DANIEL JOHN 05/02/1997 555 09/08/1998 SHEEHAN vs. BOZARTH 22 SHEEHAN, DANIEL JOHN 04/25/1989 530 01/23/1991 SHEEHAN vs. LYNAUGH 23 SHEEHAN, DANIEL JOHN 04/30/1997 550 12/11/1997 SHEEHAN vs. NUECES COUNTY, ET AL 24 SHEEHAN, DANIEL JOHN 05/28/1996 550 09/12/1996 SHEEHAN vs. LUBY, ET AL 25 SHEEHAN, DANIEL JOHN 09/28/1999 530 03/14/2000 SHEEHAN, ET AL vs. JOHNSON 26 SHEEHAN, DANIEL JOHN 05/17/1999 530 11/30/1999 SHEEHAN vs. JOHNSON 27 SHEEHAN, DANIEL JOHN 05/20/1998 550 01/14/1999 SHEEHAN vs. BUSH 28 SHEEHAN, DANIEL JOHN 04/09/1997 530 05/14/1997 SHEEHAN, ET AL vs. DIRECTOR TDCJ-ID 29 SHEEHAN, DANIEL JOHN 10/28/1991 550 08/11/1992 SHEEHAN vs. SOLIZ 30 SHEEHAN, DANIEL JOHN 06/01/1992 530 02/01/1993 SHEEHAN vs. DIRECTOR, TDCJ-ID, ET AL 31 SHEEHAN, DANIEL JOHN 09/27/2000 530 06/01/2001 SHEEHAN vs. JOHNSON 32 SHEEHAN, DANIEL JOHN 07/19/1997 555 08/06/1997 SHEEHAN vs. GARZA, ET AL 33 SHEEHAN, DANIEL JOHN 07/19/1997 555 08/06/1997 SHEEHAN vs. EILANB, ET AL 34 SHEEHAN, DANIEL JOHN 08/04/1988 530 07/17/1989 SHEEHAN vs. LYNAUGH 35 SHEEHAN, DANIEL JOHN 06/06/1996 530 09/30/1996 SHEEHAN vs. NUECES COUNTY JAIL 36 SHEEHAN, DANIEL JOHN 08/31/1999 530 09/24/1999 SHEEHAN vs. DIRECTOR, TDCJ-ID 37 SHEEHAN, DANIEL JOHN 08/24/1992 530 03/10/1993 SHEEHAN vs. DIRECTOR TDCJ 38 SHEEHAN, DANIEL JOHN 11/25/2002 550 01/24/2003 SHEEHAN vs. BRAZIL, ET AL 39 SHEEHAN, DANIEL JOHN 12/11/1997 550 09/08/1998 SHEEHAN vs. RIVES 40 SHEEHAN, DANIEL JOHN 10/22/1996 530 01/27/1997 SHEEHAN vs. DIRECTOR TDCJ-ID 41 SHEEHAN, DANIEL JOHN 01/06/1998 550 03/13/1998 SHEEHAN vs. POLUNSKY 42 SHEEHAN, DANIEL JOHN 11/20/1997 550 02/17/1998 SHEEHAN vs. WEAVER, ET AL 43 SHEEHAN, DANIEL JOHN 11/25/1997 550 01/28/1998 SHEEHAN vs. WEAVER, ET AL 44 SHEEHAN, DANIEL JOHN 11/01/1991 550 02/01/1993 SHEEHAN vs. SOLIZ 45 SHEEHAN, DANIEL JOHN 11/25/1991 550 03/31/1992 SHEEHAN vs. EVANS 46 SHEEHAN, DANIEL JOHN 12/10/2003 530 08/19/2004 SHEEHAN vs. WOODS, ET AL 47 SHEEHAN, DANIEL JOHN 08/04/1992 530 08/19/1992 SHEEHAN vs. COLLINS 48 SHEEHAN, DANIEL JOHN 09/09/1998 550 08/16/1999 SHEEHAN vs. GILBERT, ET AL 49 SHEEHAN, DANIEL JOHN 10/29/1999 555 02/02/2001 DAVIS, ET AL vs. SCOTT, ET AL
ATTACHMENT II
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 98-50972 Conference Calendar
DANIEL JOHN SHEEHAN,
Plaintiff-Appellant, versus
MELINDA HOYLE BOZARTH, Director, Texas Department of Criminal Justice, Pardons Paroles Division; HUGH CAMPBELL; T. HITCHCOCK, Employee, Texas Parole Division; VICTOR RODRIGUEZ, Chairman; MS. JENKINS; COMMISSIONER OF PAROLE; P. DITTFURTH,
Defendants-Appellees.
Appeal from the United States District Court for the Western District of Texas USDC No. A-97-CV-199-SS.
June 16, 1999
Before EMILIO M. GARZA, BENAVIDES, and PARKER, Circuit Judges.
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.
Daniel Sheehan (TDCJ # 426771) is BARRED from proceeding in forma pauperis (IFP) under the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915(g), because, on at least three prior occasions while incarcerated, Sheehan has brought an action or appeal in a court of the United States that was dismissed as frivolous or for failure to state a claim upon which relief could be granted. See Sheehan v. Lynaugh, No. 2-92-CV-176 (W.D. Tex. Aug. 6, 1992); Sheehan v. County of Gregg, No. C-97-255 (S.D. Tex. Dec. 15, 1997); Sheehan v. Soliz, No. 2-91-CV-329 (S.D. Tex. Aug. 12, 1991). One Texas district court already has dismissed a civil rights complaint filed by Sheehan pursuant to the three-strikes rule. See Sheehan v. Scott, No. H-97-1927 (S.D. Tex. Dec. 10, 1998).
Accordingly, Sheehan's IFP status is DECERTIFIED, and he may not proceed IFP in any civil action or appeal filed while he is in prison unless he is under imminent danger of serious physical injury. See § 1915(g). The appeal is DISMISSED.
Sheehan has 15 days from the date of this opinion to pay the full appellate filing fee of $105 to the clerk of the district court, should he wish to reinstate his appeal.
IFP DECERTIFIED; APPEAL DISMISSED.
ATTACHMENT III
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS BEAUMONT DIVISION
DANIEL SHEEHAN §
vs. § CIVIL ACTION NO. 1:03cv889
MITCH WOODS, ET AL §
MEMORANDUM OPINION
Daniel Sheehan, an inmate confined at the Jefferson County Correctional Facility, proceeding pro se, filed the above-styled civil rights lawsuit. Plaintiff complains of conditions at the Jefferson County Correctional Facility. As plaintiff did not submit the required filing fee along with his complaint, the court will assume plaintiff is attempting to proceed on an in forma pauperis basis.
Plaintiff purports to have also filed this lawsuit on behalf of Pete Clements. He states that Mr. Clements has granted him power of attorney to do so. However, the grant of a power of attorney does not entitle plaintiff to proceed on behalf of Mr. Clements in this court. Based on this, and the fact that Mr. Clements' signature does not appear on the complaint, the court will not construe this lawsuit as being filed by Mr. Clements as well as Mr. Sheehan. Mr. Clements is, of course, free to file his own complaint.
Analysis
Title 28 U.S.C. § 1915(g) prohibits prisoners from repeatedly filing frivolous or malicious complaints. Section 1915(g) provides as follows:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action [ in forma pauperis] . . . if the prisoner has, on three or more occasions . . . 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.
Prior to the date on which he filed this lawsuit, courts had dismissed at least three lawsuits filed by plaintiff as frivolous or for failure to state a claim. As a result, Section 1915(g) is applicable.
Sheehan v. Lynaugh, No. 2-92-cv-176 (S.D. Tex. Aug. 6, 1992); Sheehan v. County of Gregg, No. C-97-255 (S.D. Tex. Dec. 15, 1997); Sheehan v. Soliz, No. 2-91-cv-329 (S.D. Tex. Aug. 12, 1991).
As set forth above, plaintiff has had at least three prior cases dismissed as frivolous or for failure to state a claim. The factual allegations set forth in the complaint do not demonstrate plaintiff was in "imminent danger of serious physical injury" at the time he filed his complaint. Accordingly, Section 1915(g) prevents plaintiff from proceeding with this action on an in forma pauperis basis.
Conclusion
For the reasons set forth above, this lawsuit will be dismissed without prejudice pursuant to Title 28 U.S.C. § 1915(g). An appropriate Final Judgment shall be entered. SIGNED this 28th day of August, 2003.
In his complaint, plaintiff states he intends to submit the required filing fee by separate cover. If plaintiff pays the required filing fee of $150 within 30 days, this case will be reinstated on the court's active docket.
ATTACHMENT IV
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION
DANIEL J. SHEEHAN, § TDCJ-ID #426771 (former), § Plaintiff,
§§ v. § CIVIL ACTION H-98-2996
§ JOHN GILBERT, et al.,
§§ Defendants. §
FINAL JUDGMENT
For the reasons stated in this court's Order of Dismissal, this civil action is DISMISSED.
This is a FINAL JUDGMENT.
The Clerk will provide a copy to the parties.
Signed at Houston, Texas, on August 16, 1999.
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION
DANIEL J. SHEEHAN, § TDCJ-ID #426771 (former), § Plaintiff,
§§ v. § CIVIL ACTION H-98-2996
§ JOHN GILBERT, et al.,
§§ Defendants. §
ORDER OF DISMISSAL
This plaintiff, a former prison inmate, filed this civil rights complaint pro se and applied for pauper status under 28 U.S.C. § 1915 while he was incarcerated. He alleges that his constitutional rights have been violated during disciplinary proceedings by employees of the Texas prison system, and he seeks relief under 42 U.S.C. § 1983.
A plaintiff seeking relief under 42 U.S.C. § 1983 must establish two essential elements: that the conduct complained of was committed under color of state law, and that the conduct deprived the plaintiff of rights secured by the Constitution or laws of the United States. Hernandez v. Maxwell, 905 F.2d 94, 95 (5th Cir. 1990). 28 U.S.C. § 1915 authorizes a federal court to dismiss a claim filed in forma pauperis (IFP) "if satisfied that the action is frivolous or malicious." Under this statute, an action is frivolous if it "lacks an arguable basis either in law or in fact." Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993) (quoting Neitzke v. Williams, 490 U.S. 319, 325 (1989)). Under the statute as originally enacted, judges have the authority to dismiss a claim based on "an indisputably meritless legal theory" or a claim "whose factual contentions are clearly baseless." Neitzke at 327. As amended by the Prison Litigation Reform Act (PLRA), the statute mandates dismissal of a prisoner's IFP case if the complaint is found to be frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2), as amended April 26, 1996.
Court records show that Sheehan has had ample access to this court and has filed several other civil rights complaints pro se. The PLRA now includes a provision (commonly known as the three-strikes provision) that no prisoner may file a civil action as a pauper if he has had three or more civil actions or appeals dismissed for being frivolous, malicious, or failing to state a claim upon which relief may be granted. 28 U.S.C. § 1915(g).
Sheehan's litigation history reveals that he falls into this category — he has had three such dismissals, and has been warned by the United States Court of Appeals for the Fifth Circuit of possible sanctions resulting from vexatious, abusive filings. Even before passage of the PLRA, federal courts had the ability to issue sanctions against prisoner litigants who continued to file frivolous lawsuits. See, e.g., Moody v. Baker, 857 F.2d 256 (5th Cir.), cert. denied, 488 U.S. 985 (1988). Therefore, the court finds that this complaint must be dismissed under 28 U.S.C. § 1915(g). It is ORDERED as follows:
1. This complaint is DISMISSED under 28 U.S.C. § 1915(g).
2. The plaintiff's Motions to Proceed In Forma Pauperis [Docs. #5 and #8] are DENIED.
3. Plaintiff Sheehan is assessed a sanction of $75.00 for his abuse of the judicial system. Until he pays all sanctions assessed against him and unless he receives specific permission from a judicial officer, Sheehan may file no more civil actions as a pauper in this court.
The Clerk is directed to provide a copy of this Order of Dismissal to the parties; the TDCJ — Office of the General Counsel, P.O. Box 13084, Austin, Texas, 78711, Fax Number (512) 936-2159; the Inmate Trust Fund, P.O. Box 629, Huntsville, Texas 77342-0629; and Nancy Doherty, District Clerk for the Northern District of Texas, 14A20 Earle Cabell Federal Building, 1100 Commerce Street, Dallas, Texas 75242-1003, Attention: Claire Laric.
Signed at Houston, Texas, on August 16, 1999.