United States District Court, S.D. Texas, Corpus Christi Division
Tagle, Senior United States District Judge
Michael Garrett (“Garrett”) is in the custody of
the Texas Department of Criminal Justice (TDCJ) and is
currently incarcerated at the McConnell Unit in Beeville,
Texas. He filed a civil rights action under 42 U.S.C. §
1983 and an application to proceed in forma pauperis
on July 21, 2016, Dkt. Nos. 1, 2, and 3. He alleges that he
is in imminent danger and living in inhumane conditions as a
result of flooding in his cell, in violation of the Eighth
Amendment's prohibition on cruel and unusual punishment.
See Dkt. Nos. 1, 2. He seeks declaratory judgment
and an injunction condemning his living quarters until
conditions have improved. Id. Garrett also seeks a
motion for entry of default against TDCJ Defendants Lorie
Davis, Oscar Mendoza, and Crystal Rodriguez (collectively,
“Defendants”). See Dkt. Nos. 12, 19.
Court now has before it Garrett's complaint, Dkt. Nos. 1,
2; his motion to proceed in forma pauperis, Dkt. No.
3; Defendants' motion to dismiss pursuant to 28 U.S.C.
§ 1915(g), Dkt. No. 8; Garrett's response to this
motion, Dkt. Nos. 8, 9; the Memorandum and Recommendations
(“M&Rs”) of the Magistrate Judge to whom this
case was referred pursuant to 28 U.S.C. § 636(b),
addressing Defendants' motion to dismiss and
Garrett's motion for entry of default, respectively, Dkt.
Nos. 11, 19; and Garrett's objections to the M&R
addressing Defendants' motion to dismiss, Dkt. No. 16.
The Court reviews objected-to portions of a Magistrate
Judge's proposed findings and recommendations de novo. 28
U.S.C. § 636(b)(1) (“A judge of the court shall
make a de novo determination of those portions of the report
or specified proposed findings and recommendations to which
objection is made.”)
Defendants' Motion to Dismiss
Magistrate Judge found on August 31, 2016 that Garrett is a
three strikes litigant barred from proceeding in forma
pauperis under 28 U.S.C. § 1915(g), a provision of
the Prison Litigation Reform Act (PLRA). Dkt. No. 11 at 2.
All prisoner civil rights actions are subject to the PLRA and
its three strikes rule, which “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.” Dkt. No. 11 at 3; 28 U.S.C. §
1915(g). This rule contains an exception, however, allowing
prisoners under “imminent danger of physical harm to
proceed without prepayment of the filing fee.” Dkt. No.
6. As Garrett's complaint pleads this exception, the
Magistrate Judge allowed this case to proceed without the
filing of this fee, despite Garrett's status as a three
strikes litigant. Id.
Magistrate Judge recommends that the Court grant
Defendants' motion to dismiss Garrett's claims
pursuant to § 1915(g), on the basis that Garrett is not
in imminent danger of physical harm. Dkt. No. 11. The
substance of Garrett's Eighth Amendment claim alleges
that he slipped and fell on accumulated rainwater in his cell
on May 31, 2016, and that continued leaks and flooding at the
McConnell Unit create an ongoing risk of physical harm to
Garrett. See Dkt. Nos. 1, 2, 9, 10, and 16. In their
motion to dismiss, Defendants respond that “TDCJ makes
every effort to address and fix repair issues, such as water
leaks into cells”; that the specific repair issues
Garrett complains of have been addressed pursuant to the
grievance investigation he initiated at the McConnell Unit;
and that in any case, Garrett has been moved to a new
building and cell at the McConnell Unit, which no evidence or
grievance suggests has a flooding issue. See Dkt.
No. 8. Garrett replies that his new housing assignment has
not eliminated the risk his cell will flood, on the basis
that all buildings at the McConnell Unit create the risk of
“leaking water throughout the living quarters or
cells.” Dkt. No. 9 at 2. On consideration of these
pleadings, the Magistrate Judge notes that Garrett
“does not assert that his cell has been flooded with
rainwater since he moved, ” and recommends that
“[t]he fact that [Garrett's] new living quarters
might flood the next time it rains does not rise to the level
of real and proximate danger” required for his
complaint to satisfy the “imminent danger”
exception to § 1915(g). Dkt. No. 11 at 5.
Court agrees. Garrett's objections to the M&R
addressing Defendants' motion to dismiss claim that the
Magistrate Judge has erred for two reasons. First, Garrett
alleges that the Magistrate Judge failed to assess his claims
under the correct legal standard, an allegation this Court
dismisses out of hand on review of Garrett's objections
and the relevant law. Second, Garrett alleges that “he
is still under imminent danger of serious physical
injury” as a result of rainwater leaks, and attaches
the affidavits of two other individuals incarcerated at the
McConnell Unit, Mark Kearney and Kenneth Scott, to
substantiate his claim. Dkt. No. 16 at 1. Only Scott,
however, lives in the same building that Garrett now resides
in. See Dkt. No. 16-2, Aff. of Scott. While Scott
does allege that rainwater leaks into his living
quarters, he does not suggest that he has personal knowledge
of any leaks into Garrett's cell, nor that he has filed a
grievance with the TDCJ regarding his allegation.
Id. Accordingly, the Court finds that Scott's
affidavit does not corroborate Garrett's claim that he
remains in imminent danger of serious physical
foregoing reasons, Garrett's objections to the M&R
addressing Defendants' motion to dismiss pursuant to
§ 1915(g) are OVERRULED.
Garrett's Motion for Entry of Default
Magistrate Judge construes Garrett's “Motion for
Judgment, ” filed on January 5, 2017, Dkt. No. 12, as a
motion requesting entry of default against Defendants.
See Dkt. No. 19. The M&R addressing this motion
recommends that the Court deny Garrett's motion, as
Defendants are not in default. The deadline to file
objections to this M&R has passed, and the docket sheet
shows that no objections have been filed. See 28
U.S.C. § 636(b)(1) (setting 14-day deadline to file
objections); Fed.R.Civ.P. 72(b)(2) (same); see also
M&R at 2 (advising parties of 14-day deadline).
independently reviewed the record and considered the
applicable law, having reviewed the findings of fact,
conclusions of law, and recommendations proposed by the
Magistrate Judge's M&Rs as well as Garrett's
objections, and having made a de novo disposition of the
portions of the M&R addressing Defendants' motion to
dismiss to which Garrett specifically directed objections,
the Court hereby:
ADOPTS the M&R addressing Defendants' motion to
dismiss, Dkt. No. 11, and GRANTS Defendants' Motion to
Dismiss, Dkt. No. 8; and
ADOPTS the M&R addressing Garrett's motion for
judgment, Dkt. No. 19, and DENIES Garrett's ...