Opinion
2:04-CV-0085
April 20, 2004
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Plaintiff DARRELL PICKENS, acting pro se and while a prisoner incarcerated in the Texas Department of Criminal Justice, Institutional Division, has filed suit pursuant to Title 42, United States Code, Section 1983 complaining against the above-named defendants and has submitted an application to proceed in forma pauperis.
On April 26, 1996, the Prison Litigation Reform Act of 1995 (PLRA) was signed into law, modifying the requirements for proceeding in forma pauperis in federal courts. Under the PLRA's "three strikes" provision, a prisoner who has had three prior actions or appeals, brought during detention, dismissed as frivolous, malicious, or for failure to state a claim, is barred from further proceeding in forma pauperis in such actions, unless the case fits into the narrow exception enumerated in 18 U.S.C. § 1915(g).
The Fifth Circuit has examined the PLRA and construed it to apply to all cases pending at the time of its passage, as well as those filed afterwards. Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996). A prisoner who has sustained three dismissals qualifying under the "three strikes" provision may still pursue any claim, "but he or she must do so without the aid of the i.f.p. procedures." Id.
The Court notes that plaintiff PICKENS has sustained at least three dismissals which fulfill the "three strikes" provision of the PLRA. Cause No. 1:96-CV-0103 was dismissed by the United States District Court for the Northern District of Texas, Abilene Division, on March 31, 1997 as frivolous, and no appeal was taken; Cause No. 2:95-CV-0285 was dismissed for frivolousness by the United States District Court for the Northern District of Texas, Amarillo Division, on June 25, 1998, and no appeal was taken; and Cause No. 2:96-CV-0095 was dismissed by the United States District Court for the Northern District of Texas, Amarillo Division, on November 13, 1998 for failure to state a claim, and no appeal was taken.
Pursuant to Title 28, United States Code, section 1915(g), the Court FINDS plaintiff DARRELL PICKENS may not proceed in forma pauperis in any further new filings or appeals filed while a prisoner unless grounds are argued in a motion for leave which fall within the limited exception enumerated in Title 28, United States Code, section 1915(g). Even if the instant cause were accompanied by the necessary motion, the grounds presented in the instant suit do not fall within the statutory exception. Given plaintiff's transfer from the Clements Unit, where all of the defendants are located, to the McConnell Unit, plaintiff is suing defendants in whose custody and control he no longer resides and who cannot place him in imminent danger of serious physical injury. Plaintiff has alleged no fact fulfilling the statutory exception as construed by the Fifth Circuit. Banos v. O'Guin, 144 F.3d 883, 885 (5th Cir. 1998).
CONCLUSION
For the reasons set forth above, plaintiff's motion to proceed in forma pauperis is DENIED.
The instant cause is DISMISSED WITHOUT PREJUDICE TO REFILING WITH PREPAYMENT OF THE FILING FEE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
All pending motions are DENIED.
IT IS SO ORDERED.