United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
CARRILLO RAMIREZ, UNITED STATES MAGISTRATE JUDGE
Special Order 3-251, this pro se case was
automatically referred for judicial screening. Before the
Court is the plaintiff's challenge to the judgment,
received March 8, 2019 (doc. 7). Based on the relevant
filings and applicable law, it should be construed as a
motion under Fed.R.Civ.P. 60(b) and denied.
December 27, 2018, Lowell Quincy Green (Plaintiff), an inmate
in the Texas Department of Criminal Justice, filed a
complaint under 42 U.S.C. § 1983 against various
defendants, including unnamed police officers who arrested
him in 1986 and the prosecutor who filed charges against him
based on the arrest. (doc. 3 at 3-4.) He also sued Parkland
Memorial Hospital for committing medical malpractice while
treating him for a stabbing during the incident that led to
his arrest by leaving items in his stomach, and the
University of Texas Medical Branch (UTMB), which treated him
in 1997 for the items left in his stomach by Parkland
Memorial Hospital. (Id.)
December 28, 2018, it was recommended that the case be
summarily dismissed as barred by the
“three-strikes” rule of 28 U.S.C. § 1915(g),
unless Plaintiff timely paid the filing fee. (See
doc. 3.) The recommendation was accepted, and the case was
dismissed without prejudice as three-strikes barred on
January 18, 2019. (See docs. 4, 5.) Plaintiff filed
a notice of appeal on February 5, 2019 (doc. 6).
now contends that his case should not have been dismissed
under § 1915(g) for nonpayment of the filing fee because
he has a right under the constitution and federal statutes to
sue for a violation of his substantive rights. (doc. 7 at
8-10.) He claims that two of the strikes were
unconstitutional because those cases are on appeal, and that
one strike should not have counted because it was for an
appeal that was dismissed for want of prosecution.
(Id. at 7-8, 15-16). He also contends that he is in
imminent danger of serious physical injury because on
November 30, 2015, UTMB became aware that he has Hepatitis C
but has not treated him for it. (Id. at 3, 5, 13,
filing may be liberally construed as a motion seeking relief
under Federal Rule of Civil Procedure 60(b). See Smith v.
Texas Dep't of Criminal Justice, Institutional Div.
79 Fed.Appx. 61, 62, (5th Cir. 2003).
60(b) provides that a court may relieve a party from a final
judgment or order for the following reasons: (1) mistake,
inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence that, with reasonable diligence, could
not have been discovered earlier; (3) fraud,
misrepresentation, or misconduct by an opposing party; (4)
the judgment is void; (5) the judgment has been satisfied,
released, or discharged, or it is based on an earlier
judgment that has been reversed or vacated, or that applying
the judgment prospectively is no longer equitable; or (6) any
other reason that justifies relief. Fed. R. Civ. Proc.
60(b)(6) is “a residual clause used to cover unforeseen
contingencies; that is, it is a means for accomplishing
justice in exceptional circumstances.” Steverson v.
GlobalSantaFe Corp., 508 F.3d 300, 303 (5th Cir. 2007)
(quoting Stipelcovich v. Sand Dollar Marine, Inc.,
805 F.2d 599, 604-05 (5th Cir. 1986)). Motions under this
clause “will be granted only if extraordinary
circumstances are present.” Hess, 281 F.3d at
216. In Seven Elves, Inc. v. Eskenazi, 635 F.2d 396
(5th Cir. 1981), the Fifth Circuit set forth several
considerations for evaluating a motion under Rule 60(b)(6):
(1) that final judgments should not lightly be disturbed; (2)
that a Rule 60(b) motion should not be used as a substitute
for appeal; (3) that the rule should be liberally construed
in order to achieve substantial justice; (4) whether, if the
case was not decided on its merits due to a default or
dismissal, the interest in deciding the case on its merits
outweighs the interest in the finality of the judgment and
there is merit in the claim or defense; (5) whether, if the
judgment was rendered on the merits, the movant had a fair
opportunity to present his claims; (6) whether there are
intervening equities that would make it inequitable to grant
relief; and (7) any other factors relevant to the justice of
the judgment under attack. Id. at 402.
60(b) motion “cannot be used to raise argument which
could, and should, have been made before the judgment
issued[, and] cannot be used to argue a case under a new
legal theory.” Dial One of the Mid-South, Inc. v.
BellSouth Telecommunications, Inc., 401 F.3d 603, 607
(5th Cir. 2005). Plaintiff's arguments could have been
made before judgment was entered, so they cannot form the
basis for relief under Rule 60(b).
his arguments lack merit. “Section 1915(g) is a
procedural statutory provision that does not affect a
prisoner's substantive rights, and it does not block his
or her access to the courts. It does not prevent a prisoner
with three strikes from filing civil actions, it merely
prohibits him from enjoying [in forma pauperis]
status.” Cardenas v. Young, 655 Fed.Appx. 183,
188 (5th Cir. 2016) (citations and internal quotation marks
omitted). “The Constitution only requires the waiver of
filing fees in criminal cases an civil proceedings
implication fundamental interests such as divorce proceedings
and proceedings to terminate parental rights.”
Id. (holding that § 1915(g) did not block
access to the courts and was not unconstitutional as
applied). A court may dismiss a complaint for failure to pay
the filing fee as ordered. See Wilson v. Moreno, 95
F.3d 46 (5th Cir. 1996) (district court did not err in
dismissing case where plaintiff did not comply with court
order to file application to proceed in forma
pauperis or pay the filing fee).
dismissal of a case by a district court, as frivolous
malicious, or for failure to state a claim, counts as a
strike under § 1983, even if an appeal of that case is
pending. Coleman v. Tollefson, 135 S.Ct. 1759, 1763
(2015). The recommendation noted a previous case finding that
Plaintiff had seven strikes, Green v. Texas Parole
Board, No. 3:18-CV-2556-K-BK (N.D. Tex. Sept. 27, 2018),
rec. adopted (N.D. Tex. Oct. 15, 2018). In one of
those cases, the appeal was dismissed for failure to pay the
filing fee. See Green v. State of Texas, No.
6:17-CV-92 (W.D. Tex. May 18, 2017), appeal dismissed for
failure to pay filing fee, No. 17-50648 (5th Cir. Oct.
19, 2017). That appeal was not counted as a strike. Plaintiff
has not shown why any other of his prior cases should not
have counted as strikes, however.
Plaintiff alleges that he is in imminent danger of serious
physical injury because UTMB has not treated his Hepatitis C.
Plaintiff did not allege that as a claim against UTMB in his
complaint. To avoid the three-strikes rule, an allegation
that a prisoner is in imminent danger of serious physical
injury must relate to the claims in the complaint. See
Judd v. Federal Election Comm'n, 311 Fed.Appx. 730,
731 (5th Cir. 2009) (allegation that prisoner was in imminent
danger of serious physical injury from untreated health
condition did not relate to his complaint). Any non-treatment
of Plaintiffs Hepatitis C does not render him in imminent
danger of serious physical injury as a result of facts
underlying the claims in his complaint. The records he
attaches show that on November 30, 2015, a health provider
discussed treatments for Hepatitis C, but Plaintiff stated
that he was awaiting a court decision and was concerned that
treatment would affect his pending lawsuit. (See
doc. 7 at 18.) He does not allege whether he sought ...