The opinion of the court was delivered by: Leonard Davis United States District Judge
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND DENYING PLAINTIFF'S MOTIONS FOR RELIEF FROM JUDGMENT
The Plaintiff William Steed Kelley, proceeding pro se, filed this civil rights lawsuit under 42 U.S.C. §1983 complaining of alleged deprivations of his constitutional rights. This Court ordered that the case be referred to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate Judges.
Kelley complained of his confinement in the "super segregation" section of the Coffield Unit. After review of the pleadings, the Magistrate Judge issued a Report on March 29, 2011, recommending that the lawsuit be dismissed because Kelley failed to show that he was in imminent danger of serious physical injury, as required for him to proceed in forma pauperis under 28 U.S.C. §1915(g), and that he failed to show proof that he had satisfied sanctions imposed upon him by the Northern District of Texas, which barred him from filing further lawsuits until he did so. When objections from Kelley were not received in a timely manner, his lawsuit was dismissed on May 19, 2011.
The next day, an amended complaint from Kelley was received and filed. He followed this with a motion to hold the proceedings in partial abeyance, a motion for appointment of counsel, objections to the Report, a motion for a preliminary injunction, two letters, and another motion for injunctive relief.
Although none of these pleadings are properly filed in closed cases, the Magistrate Judge reviewed Kelley's objections to the Magistrate Judge's Report, in conjunction with his other pleadings, as a motion to alter or amend the judgment. See United States v. Gallardo, 915 F.2d 149, 150 n.2 (5th Cir. 1990) (construing objections to magistrate judge's report received after the case was dismissed as a motion to alter or amend the judgment).
After review of Kelley's pleadings, the Magistrate Judge issued a Report on June 6, 2011, recommending that the objections, construed as a motion to alter or amend the judgment, be denied. The Magistrate Judge concluded that Kelley's references to potential psychological harm failed to show that he is in "imminent danger of serious physical injury," as required to trigger the exception to 28 U.S.C. §1915(g).
In addition, the Magistrate Judge said, neither Kelley's pleadings nor his amended complaint make any reference to the fact that he has been barred from filing any new lawsuits until he satisfies the sanctions imposed upon him by the U.S. District Court for the Northern District of Texas. In Kelley v. Texas, 117 Fed.Appx. 915, 2004 WL 2634173 (5th Cir., November 19, 2004), the Fifth Circuit affirmed the Southern District's dismissal of a lawsuit from Kelley, which dismissal was based in part on Kelley's failure to comply with the Northern District's sanction orders. The Southern District also imposed additional sanctions of $300.00 as well as barring Kelley from filing any new lawsuits without permission. The Magistrate Judge noted that in the Southern District case, Kelley argued, as he does in the present lawsuit, that he is shuffled from cell to cell every few days and that placement in segregation has caused various physical and psychological problems. The Southern District determined that these claims were frivolous and malicious. In any event, the Magistrate Judge stated that Kelley's objections showed no basis for setting aside the final judgment and recommended that these objections, construed as a motion to alter or amend the judgment, be denied.
Kelley filed objections to this Report on July 25, 2011. Since the Report was entered on June 6, Kelley has also filed a motion for temporary restraining order, a supplemental motion to hold the case in partial abeyance, another motion for a temporary restraining order, a notice of supplemental evidence, another motion for reconsideration of the final judgment, another notice of supplemental evidence, another motion for a temporary restraining order, a motion to a writ of habeas corpus ad testificandum, a second supplemental notice of evidence, a third supplemental notice of evidence, objections to a previous denial of a temporary restraining order, a fifth motion for injunctive relief, a letter complaining that he is unable to file documents with the Court, another letter regarding his mail, a sixth motion for injunctive relief, a notice withdrawing consent to trial before the Magistrate Judge, and a notice of supplemental evidence in support of his complaint.
In Kelley's second motion for relief from judgment, which was filed after the Report of the Magistrate Judge recommending denial of the first such motion, Kelley says that he tried to file his objections, but these were delayed by prison officials, with the result that they were received by the Court after the case was dismissed. This motion concedes that Kelley has been sanctioned for "prior litigation efforts" and says that he must obtain court permission and allege facts showing that he is in imminent danger of serious physical injury in order to proceed in forma pauperis under 28 U.S.C. §1915(g). He states that he has shown such imminent danger in his complaint and particularly in his first amended complaint. However, as the Magistrate Judge's Report demonstrates, Kelley's assertions in his first amended complaint fall well short of the necessary showing of a finding of imminent danger of serious physical injury. Kelley's motion also makes no mention of the requirement that he show proof of satisfaction of the monetary sanctions from the Northern District before he may be allowed to proceed.
In his objections to the Magistrate Judge's Report, Kelley terms this Report a "farce undeserving of any serious rebuttal." He states that the defendants have endangered him by "fingering him as an informant," and so "plotting prisoners" have directed threats at him, promising to kill him should their plots be revealed to the staff. Kelley also pointed to an alleged "security breach" which he claimed placed him in danger, but conceded that he has refused to provide prison officials with information so that they can eliminate this breach.
Because he cannot reveal the precise nature of the security breach, he says that the public, the prison staff, and Kelley himself are all in danger. He also asserts that his 21 years in segregated confinement is having a deleterious impact on his physical and mental health.
Kelley asserts that the "imminent danger" provision has been held to be satisfied by allegations that prison staff refused protection to prisoners targeted by gangs, disclosed a prisoner's history as an informant, resulting in threats and assaults, "defamed" a prisoner, resulting in threats from others, or kept a prisoner near known enemies. He says that other cases have held that claims of denial of medical treatment have been held sufficient.
In an attached affidavit, Kelley complains of the treatment of his objections as a Rule 59 motion, and demands that his motion to vacate the judgment, which was filed after the Magistrate Judge's Report, be addressed by the Court.
He then complains about a number of statements made in the Report. First, he complains that the Report said that his objections were not timely filed, saying that under the mailbox rule, they were timely filed on May 8, 2011. Whether or not this is accurate, in light of the Court's order saying that the objections were ...