United States District Court, N.D. Texas, Dallas Division
LEONARD CHARLES WAFER (TDCJ No. 1478005), Petitioner,
POLK COUNTY 411TH DISTRICT COURT, ET AL., Respondent.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
L. HORAN UNITED STATES MAGISTRATE JUDGE
pro se action initiated by a Texas prisoner through
a form petition for seeking habeas relief under 28 U.S.C.
§ 2254 has been referred to the undersigned United
States magistrate judge for pretrial management under 28
U.S.C. § 636(b) and a standing order of reference from
United States District Judge Sam A. Lindsay. Because the
relief Petitioner Leonard Charles Wafer seeks is civil in
nature, the undersigned enters these findings of fact,
conclusions of law, and recommendation that the Court should
summarily dismiss this action without prejudice under 28
U.S.C. § 1915(g) unless, within the time for filing
objections to this recommendation or by some other deadline
established by the Court, Wafer pays the full filing fee of
currently serving a 30-year sentence for aggravated
kidnapping, handed down after he was convicted in a state
court in Navarro County, Texas, alleges that a state court in
Polk County, Texas conspired with the court in Navarro County
“and filed charges that were over - to get [his] [state
habeas] writ denied.” Dkt. No. 3 at 2, 4; see also
Id. at 6 (“Polk County indicted me intentionally
for Navarro County to destroy my chance for my 11.07 bench
warrant release. ... After Court of Criminal Appeals denied
by writ, Polk County dismissed charges because conspiracy was
civil nature of this suit is further supported by Wafer's
failure to challenge the fact or duration of his current
confinement, choosing instead to request monetary damages.
See Id. at 7 (“I want the maximum penalty
brought against [Polk County] to be paid to me for everyday I
been incarcerated when they conspired with Navarro County
from 7-12-16 until this issue is solved.”); Poree
v. Collins, 866 F.3d 235, 243 (5th Cir. 2017)
(“Both 28 U.S.C. § 2254 and 42 U.S.C. § 1983
offer relief to those improperly confined by the government.
Which statutory vehicle to use depends on the nature of the
claim and the type of relief requested, the instructive
principle being that challenges to the fact or duration of
confinement are properly brought under habeas.”
(footnotes omitted)); see also Jackson v. United
States, No. 3:18-cv-265-M-BN, 2018 WL 2164526, at *1
(N.D. Tex. Apr. 16, 2018) (“While Jackson's
Replevin Complaint has been docketed as a petition for writ
of mandamus, this Court must construe a prisoner's
pro se filings, no matter how labeled, based on the
relief sought.”), rec. accepted, 2018 WL
2151328 (N.D. Tex. May 10, 2018); cf. Reed v.
Thaler, No. 2:11-cv-93, 2011 WL 3924171, at *2 (N.D.
Tex. Aug. 15, 2011) (A petitioner who “seeks both
monetary damages, which are primarily available in a civil
rights action pursuant to 42 U.S.C. § 1983, and release
[from incarceration], which is available in a habeas corpus
action pursuant to 28 U.S.C. § 2254, ” seeks
“two forms of relief that cannot be obtained in the
same suit.”), rec. adopted, 2011 WL 3927746
(N.D. Tex. Sept. 7, 2011).
of the merits of Wafer's current claims, if any, his
litigation history in this Court alone as of September 2009
reflected that he already “was allowed to proceed
in forma pauperis [(“IFP”)] in three
prior civil actions filed in this court while he was
incarcerated. All three cases were dismissed either as
frivolous or for failure to state a claim.” Wafer
v. Corsicana Police Dep't, No. 3:09-cv-1680-B, 2009
WL 3124755, at *2 (N.D. Tex. Sept. 29, 2009) (citing
Wafer v. Hill, No. 3:07-cv-1647-N (N.D. Tex. Oct.
24, 2007), rec. adopted, (N.D. Tex. Dec. 20, 2007);
Wafer v. Thompson, No. 3:07-cv-1143-P, 2007 WL
4226358 (N.D. Tex. Nov.30, 2007); Wafer v. Cox, No.
3:07-cv-891-D, 2007 WL 4165748 (N.D. Tex. Nov. 20, 2007);
denying leave to proceed IFP and dismissing case without
prejudice for failure to pay the statutory filing fee).
Standards and Analysis
prisoner may not proceed IFP if, while incarcerated or
detained in any facility, he or she has filed three or more
civil actions or appeals in federal court that were dismissed
as frivolous or malicious or for failure to state a claim.
See 28 U.S.C. § 1915(g).
only exception to 28 U.S.C. § 1915(g)'s “three
strikes” bar is when the prisoner is “under
imminent danger of serious physical injury.”
Id. But, in order to meet the “imminent
danger” requirement of Section 1915(g), “the
‘threat or prison condition [must be] real and
proximate.'” Valdez v. Bush, No.
3:08-cv-1481-N, 2008 WL 4710808, at *1 (N.D. Tex. Oct. 24,
2008) (quoting Ciarpaglini v. Saini, 352 F.3d 328,
330 (7th Cir. 2003)). “Allegations of past harm do not
suffice - the harm must be imminent or occurring at the time
the complaint is filed.” Id.; see also
McGrew v. La. State Penitentiary Mental Health
Dep't, 459 Fed.Appx. 370, 370 (5th Cir. 2012) (per
curiam) (“The determination whether a prisoner is under
‘imminent danger' must be made at the time the
prisoner seeks to file his suit in district court, when he
files his notice of appeal, or when he moves for IFP
status.” (citing Baños v. O'Guin,
144 F.3d 883, 884-85 (5th Cir. 1998))).
the prisoner must allege specific facts showing that he is
under imminent danger of serious physical injury.”
Valdez, 2008 WL 4710808, at *1. “General
allegations that are not grounded in specific facts which
indicate that serious physical injury is imminent are not
sufficient to invoke the exception to § 1915(g).”
Id. (quoting Niebla v. Walton Corr. Inst.,
No. 3:06-cv-275-LAC-EMT, 2006 WL 2051307, at *2 (N.D. Fla.
July 20, 2006)); see Martin v. Shelton, 319 F.3d
1048, 1050 (8th Cir. 2003) (a “general assertion is
insufficient to invoke the exception to § 1915(g) absent
specific fact allegations of ongoing serious physical injury,
or of a pattern of misconduct evidencing the likelihood of
imminent serious physical injury”); see also Stone
v. Jones, 459 Fed.Appx. 442, 2012 WL 278658, at *1 (5th
Cir. Jan. 31, 2012) (per curiam) (noting that use of
“the past tense when describing” symptoms is not
sufficient to allege imminent danger and that such an
allegation based on inadequate medical care should be
corroborated by medical records or grievances); Stine v.
Fed. Bureau of Prisons Designation & Sentence Computation
Unit, No. 3:13-cv-4253-B, 2013 WL 6640391, at *2 (N.D.
Tex. Dec. 17, 2013) (citing Emmett v. Julye, No.
H-13-2693, 2013 WL 5537251, at *2 (S.D. Tex. Oct. 4, 2013)
(in turn citing Pettus v. Morgenthau, 554 F.3d 293,
297-98 (2d Cir. 2009) (“the complaint of a
three-strikes litigant must reveal a nexus between the
imminent danger it alleges and the claims it asserts, in
order for the litigant to qualify for the ‘imminent
danger' exception of § 1915(g)”))),
aff'd, 571 Fed.Appx. 352, 354 (5th Cir. 2014)
current filing falls under the three-strikes provision. As
such, under Section 1915(g), he may not proceed without the
prepayment of fees unless he shows that he is subject to
imminent danger of serious physical injury. But the complaint
lacks substantive factual allegations - that are also not
fanciful, fantastic, or delusional - to show that he
currently is in imminent danger of serious physical injury as
to overcome Section 1915(g).
Court should therefore bar Wafer from proceeding in forma
pauperis. See Adepegba v. Hammons, 103 F.3d
383, 388 (5th Cir. 1996).
Court should summarily dismiss this civil action without
prejudice under 28 U.S.C. § 1915(g) unless, within the
time for filing objections to this recommendation or by some
other deadline established by the ...