Opinion
No. 3:02-CV-1807-M.
March 10, 2003
SUPPLEMENTAL FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636 (b) and an Order Re-Referring Case dated January 8, 2003, subject cause has previously been referred to the United States Magistrate Judge. The supplemental findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
Plaintiff filed this civil rights action in August 2002. On August 28, 2002, the Court entered a Notice of Deficiency and Order that directed plaintiff to pay the requisite filing fee or submit an application to proceed in forma pauperis. On September 23, 2002, he paid the requisite filing fee. On December 6, 2002, after determining that plaintiff had been sanctioned by the Western District of Texas (hereinafter Western District), the undersigned Magistrate Judge recommended that this action be dismissed without prejudice because plaintiff had not sought judicial approval prior to filing the action as required by a November 21, 2000 sanction order entered in Wallace v. Manning, W-00-CA-290 (W.D. Tex. 2000). On December 19, 2002, plaintiff filed objections to the findings and recommendation by delivering them to prison authorities for mailing. In light of plaintiff's allegations of imminent danger, the District Judge re-referred the case to the undersigned Magistrate Judge for further consideration to determine whether the Court should grant plaintiff permission to file this action despite the November 21, 2000 sanctions order of the Western District.
II. OBJECTIONS TO INITIAL RECOMMENDATION
Plaintiff argued that this Court should not enforce the sanctions order of the Western District because he is under imminent danger of serious physical injury. Plaintiff contends that the Western District case resulted from his difficulties between July 12, 2000, and September 11, 2000, with forced integrated cell assignments because of his separatist views. As recently as December 18, 2002, he was again placed in an integrated cell; within a few minutes, he and his cell mate began fighting, and both sustained injuries. He further alleged that falsification of documents led to him "cutting his wrist as recently as November 30, 2002."
III. TESTIMONY AT HEARING
The Court held a Spears hearing on February 7, 2003, to elicit facts regarding plaintiff's allegations of imminent danger. Plaintiff appeared via video-teleconferencing and provided sworn testimony to the Court. The plaintiff requested and received permission to provide additional documents to the Court; those documents were filed with the Court on February 26, 2003. The Court denied plaintiff's motion for counsel for the hearing.
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985) (establishing hearing as a permissible substitute to a questionnaire to flesh our the factual and legal bases of a plaintiff's claims and to determine whether the plaintiff may file his or her action in forma pauperis), overruled on other grounds by Neitzke v. Williams, 490 U.S. 319 (1989).
Plaintiff testified that he faces imminent danger from integrated cell assignments because of his separatist views. He stated that he has had problems with black inmates "for years now" and that it has been a continuing problem at the various TDCJ-ID units. He testified that he was housed in the following facilities on the following dates: Hughes Unit (July 12, 2001, to January 28, 2002); Skyview Unit (January 28, 2002, to April 1, 2002); Allred Unit (April 1, 2002, to October 31, 2002); Clements Unit (November 1, 2002, to December 12, 2002); Montford Unit (December 12, 2002, to January 21, 2003), and Robertson Unit (since January 21, 2003). In support of his claims, plaintiff highlighted an incident that occurred on December 18, 2002, where he was placed in a cell with a black inmate, and within fifteen minutes, they were fighting. His only injury from that incident was a "little cut" on his head that required a butterfly stitch but no hospitalization. With respect to the danger posed by integrated cell assignments, plaintiff identified no more serious injury than the cut received on December 18, 2002, although he did speculate that one day someone would be killed.
Plaintiff also testified that he has twice cut his own wrists — most recently on December 1, 2002. The December 2002 cut necessitated ten to twelve stitches, but no hospitalization. He testified that he will not cut his wrists again.
Plaintiff further testified that he has previously litigated many of the claims he seeks to raise in the instant action. In addition, he testified that, when he filed the instant action, he did not remember that he had been previously sanctioned. Although he remembered that he needed to get pre-approval, he did not understand such requirement to apply in the Northern District of Texas.
IV. APPLICABLE LAW
Plaintiff alleges that the Western District's sanction order should not be enforced because he is in imminent danger of serious physical injury. The imminent danger inquiry is typically associated with in forma pauperis proceedings under the Prison Litigation Reform Act (PLRA). Section 1915(g) of Title 28, commonly known as the "three strikes" provision, states:
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.
This provision is inapplicable in this case because plaintiff has already paid the required $150 filing fee. The inquiry is nevertheless pertinent to whether the Court should observe and enforce the sanction order of the Western District in accordance with MISC. ORDER 48. If plaintiff can show such imminent danger, then he would satisfy the requirements of MISC. ORDER 48.
A. Miscellaneous Order 48
Pursuant to MISC. ORDER 48, this Court "observe[s] and enforce[s] 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 of circumstances or otherwise demonstrates that enforcing such previously imposed sanctions would be unjust." This Court has previously considered whether allegations of imminent danger present a change of circumstances under MISC. ORDER 48. See Williams v. Bill Clement Unit, No. 3:01-CV-1836-P, 2001 WL 1524438, at * 1 (N.D. Tex. Nov. 28, 2001) (order accepting recommendation that case be dismissed for failure of plaintiff to obtain judicial pre-approval before filing the action as required by previously imposed sanction despite allegation of imminent danger).
In Williams, the plaintiff had been "barred from filing any new lawsuits without advance judicial permission." See id. (quoting Williams v. Scott, No. G-00-678, slip op. at 1 (S.D. Tex. Dec. 15, 2000)). Like the plaintiff here, Williams also failed to obtain the required judicial approval before filing his action and he also alleged that he was under imminent danger of serious physical injury. See id. The Court noted that his current contention of danger "appear[ed] no different than that before the Southern District of Texas" and, consequently, found that plaintiff had "shown no change in circumstances or otherwise demonstrated that it would be unjust to enforce the sanctions summarized by the Southern District of Texas." Id. The Honorable Jorge Solis thus dismissed the action without prejudice and directed that plaintiff "not re-file it without first obtaining permission from the Court." Id. at *2.
The Williams case is indistinguishable from the instant action. As in Williams, plaintiff is reasserting claims of imminent danger which have previously been considered by other courts. Plaintiff has previously filed complaints regarding his continuing problem, in part of his own making, with integrated cell assignments over the last seven to eight years. While he speculates that someone will eventually be killed due to the integration problem, he provides no evidence that he has been in imminent danger of any serious physical injury due to the integrated cell assignments. Plaintiff admittedly has suffered no serious physical injury, only minor cuts and scrapes. Although a prisoner does not have to suffer serious physical injury to be able to show he is in imminent danger of such injury, he must provide something that indicates such danger is imminent. Mere incarceration with other prisoners does not suffice, even for a self-proclaimed "separatist" that is placed in an integrated cell assignment. Accordingly, as in Williams, plaintiff has shown no change in circumstances or otherwise demonstrated that it would be unjust to enforce the sanctions imposed by the Western District of Texas in this district.
Even if the Court applied § 1915 instead of MISC. ORDER 48 in order to determine whether the sanction order of the Western District should be enforced, the end result is the same. With respect to the timing of the imminent danger of serious physical injury for purposes of § 1915(g), the Fifth Circuit Court of Appeals has specifically held:
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.Banos v. O'Guin, 144 F.3d 883, 884-85 (5th Cir. 1998) (emphasis added); see also, Choyce v. Dominguez, 160 F.3d 1068, 1070 (5th Cir. 1998) (following Banos).
In this case, plaintiff provides no specific allegations for the time period when he filed this action, i.e. August 2002. All of his examples come either well before August 2002 or months after plaintiff had already submitted this action for filing. The recent examples, furthermore, concern TDCJ-ID units other than the Allred Unit where plaintiff was incarcerated at the time he submitted this action for filing. Plaintiff provides absolutely nothing that shows he was in any imminent danger of serious physical harm when he submitted his complaint for filing. His bouts with self-inflicted injuries do not suffice. A prisoner cannot create the imminent danger so as to escape the three strikes provision of the PLRA. To hold otherwise would eviscerate the rule. Every prisoner would then avoid the three strikes provision by threatening suicide. One cannot self-inflict serious physical injury so as to avoid the three strikes provision, sanction orders, or manipulate the judicial system. The self-inflicted wounds, furthermore, occurred neither in the Allred Unit nor around the time he submitted his complaint for filing. In addition, he testified that he did not intend to cut his wrists again.
In conclusion, plaintiff has shown no change in circumstances or otherwise demonstrated that it would be unjust to enforce the sanctions imposed by the Western District of Texas in this district. Accordingly, he must obtain judicial permission before filing any new civil action. This is not an onerous sanction. It simply requires plaintiff to seek permission before filing a civil action. In the absence of such permission, this action should be dismissed.
V. PROPRIETY OF ADDITIONAL SANCTIONS
The undersigned Magistrate Judge previously recommended that the Court dismiss the complaint filed by plaintiff and order that he not re-file it without first obtaining permission from the Court. It was further recommended that, because this action should never have been filed in the first instance due to the sanction order of the Western District, the Court should refund plaintiff the $150 filing fee that he has paid. Further consideration is warranted based on the following.
First, plaintiff specifically indicated in his complaint that he had not been sanctioned by any court as a result of any lawsuit he had filed. Such indication is clearly contrary to the sanction order entered in Wallace v. Manning, W-00-CA-290, slip op. (W.D. Tex. Nov. 21, 2000). Plaintiff explained at the Spears hearing that he had forgotten about the sanctions imposed by the Western District. Nevertheless, he conceded that he understood that he had to seek judicial pre-approval, but he believed such pre-approval was only required for actions filed in the Western District. He stated that he did not seek judicial approval for the instant action, because he was not aware that he needed such approval before filing the action.
The Court also noticed that plaintiff failed to identify all previous cases that he has filed as required by the form complaint he filed. He identifies "approximately ten" cases, "all listed" in Wallace, W-00-CA-290 (W.D. Tex.). However, that identification omits a case filed in April 2002 in the Eastern District of Texas — Wallace v. Cockrell, No. 6:02-CV-0154 (E.D. Tex.). As this may be a simple oversight, the Court will not dwell on the omission. Nevertheless, litigants should strive to avoid such imprecision. A prisoner, like plaintiff, who has been previously sanctioned for omitting important details from a complaint should be extra diligent in providing all requested information.
The standard form on which plaintiff drafted his complaint contains the following provision: " WARNING: The plaintiff is hereby advised any false or deliberately misleading information provided in response to the following questions will result in the imposition of sanctions. The sanctions the Court may impose include, but are not limited to monetary sanctions and/or the dismissal of this action with prejudice." Relying on a similar warning in the form complaint utilized in Wallace v. Manning, W-00-CA-290 (W.D. Tex.), the Western District not only denied plaintiff permission to proceed in forma pauperis due to the three strikes that he had accumulated, but it also dismissed plaintiff's action "with prejudice" and imposed the pre-approval sanction that has been thoroughly discussed in these findings.
It appears that plaintiff has again been less than candid with the Court. His explanation that he had forgotten about the "sanction" imposed by the Western District while remembering that he had to obtain judicial pre-approval is unconvincing. While the Court could impose monetary sanctions against plaintiff in addition to dismissing the instant action, it appears more appropriate to admonish and further warn plaintiff that providing any false or misleading information to this Court or any other federal court will result in additional sanctions, including monetary sanctions and/or the dismissal of his action with prejudice. In addition, the Court should make clear that the sanction from the Western District as well as the sanctions imposed in this case will apply to all future civil complaints submitted to the federal courts.
VI. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Court DISMISS without prejudice the instant complaint filed by plaintiff. Consistent with the sanction order of the Western District of Texas, he may not re-file it without first obtaining permission from the Court. Because this action should never have been filed in the first instance, the Court should also direct the Clerk's Office to refund plaintiff the $150 filing fee that he has paid. It is further recommended that the Court enter the following orders:
1. The Clerk of the Court shall accept no future civil actions submitted by plaintiff for filing, either directly or indirectly by transfer, unless attached to a motion for leave to file such action that contains a copy of the November 21, 2000 sanction order of the Western District of Texas and the Judgment entered in this case. If plaintiff attempts to file a civil action without the required motion or attachments, the Clerk of the Court is directed to return the unfiled documents to plaintiff with a copy of the Judgment entered in this case.
2. In addition, because plaintiff is barred from proceeding in forma pauperis by the three strikes provision of the PLRA, the Clerk of the Court shall accept no future civil actions submitted by plaintiff for filing, either directly or indirectly by transfer, unless accompanied by the requisite filing fee or a separate affidavit or declaration that demonstrates that plaintiff is in imminent danger of serious physical injury. If plaintiff attempts to file a civil action without the required fee or separate affidavit or declaration, the Clerk of the Court is directed to return the unfiled documents to plaintiff with a copy of the Judgment entered in this case.
3. Plaintiff is hereby admonished that providing any false or misleading information to this Court or any other federal court may result in additional sanctions, up to and including monetary sanctions and/or the dismissal of his action with prejudice.
4. Plaintiff is further admonished that he should consider the above sanctions applicable to civil actions sought to be filed in any federal court, unless he receives notice that the court receiving his proposed filing will not give effect to the sanction orders of this Court.
5. For any documents returned to plaintiff unfiled, the Clerk of the Court shall keep a received-stamped copy of the proposed filing so that the Court will have a record in the event it deems further sanctions are in order for abusive litigation practices by plaintiff. For any documents filed by the Clerk of the Court, the Clerk shall of course follow standard operating procedures.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on plaintiff by mailing a copy to him. Pursuant to 28 U.S.C. § 636 (b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten (10) 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. 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 Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) ( en banc).