United States District Court, N.D. Texas, Dallas Division
LEONARD CHARLES WAFER (TDCJ No. 1478005), Petitioner,
POLK COUNTY 411TH DISTRICT COURT, et al., Respondent.
Lindsay United States District Judge.
January 16, 2019, the Findings, Conclusions and
Recommendation of the United States Magistrate Judge
(“Report”) (Doc. 4) was entered, recommending
that the court summarily dismiss without prejudice this
action as barred by 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 $400.00.” Report 1, 5. The
magistrate judge further determined that Petitioner's
pleadings do not establish that he is currently in imminent
danger for purposes of satisfying the exception to the
“three strikes” bar applicable to prisoner
of filing objections, Petitioner filed a motion (Doc. 10),
which was received by the court and docketed on May 9, 2019.
In this motion, Petitioner indicates that his deadline to pay
the full filing fee of $400 was extended by this court to May
8, 2019, and he requests for the first time that he be
allowed to pay the filing fee in partial or monthly
installment amounts collected from his inmate account until
the filing fee of $400 is paid in full.
March 21 and April 17, 2019, the court granted
Petitioner's requests for extensions of time to retain an
attorney, pay the $400 filing fee, and file objections to the
Report. On April 17, 2019, the court extended this deadline
to May 8, 2019, but warned that no further extensions would
be granted. By requesting additional time twice to retain an
attorney and pay the $400 filing fee, Petitioner impliedly
conveyed to the court that he had the financial means to hire
an attorney and pay the full amount of the filing fee. Now,
approximately two months after entry of the Report and
obtaining two extensions to retain an attorney and pay the
$400 filing fee, Petitioner asserts that he does not have the
financial means to pay the full amount of the $400 filing fee
and requests to pay the fee in installments. The court views
Petitioner's recent motion as simply another delay
tactic. As Petitioner has not filed objections to the Report
and has failed to pay the full amount of the filing
fee of $400 as ordered within the original or extended
deadlines set by the court for filing objections and paying
the filing fee, the court denies his Motion
to Collect Initial Partial or Monthly Installment Fees from
his Inmate Trust Fund (Doc. 10). Moreover, as explained
below, because Petitioner has not made the required showing
of imminent danger of a serious physical injury in this case,
he cannot take advantage of the initial partial payment
provision of Section 1915.
carefully reviewing the pleadings, file, record in this case,
and Report, the court determines that the findings and
conclusions of the magistrate judge are correct, and
accepts them as those of the court.
Accordingly, the court dismisses without
prejudice this action pursuant to 28 U.S.C. §
1915(g) for failure to pay the full amount of the requisite
filing fee by the deadlines set by the court. Petitioner will
not be allowed to pursue the claims asserted in this action
unless he first pays the $400 filing fee. Further, the court
directs the court to term all pending
court prospectively certifies that any
appeal of this action would not be taken in good faith.
See 28 U.S.C. § 1915(a)(3); Fed. R. App. P.
24(a)(3). In support of this certification, the court
accepts and incorporates by reference the
Report. See Baugh v. Taylor, 117 F.3d 197, 202 and
n.21 (5th Cir. 1997). Based on the Report, the court finds
that any appeal of this action would present no legal point
of arguable merit and would, therefore, be frivolous. See
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).
Petitioner, however, may challenge this finding pursuant to
Baugh v. Taylor, 117 F.3d 197 (5th Cir. 1997), by
filing a separate motion to proceed in forma
pauperis on appeal with the Clerk of Court, United
States Court of Appeals for the Fifth Circuit, within 30 days
of this order. The cost to file a motion to proceed on appeal
with the Fifth Circuit is $505. Because Petitioner has
accumulated three strikes, he cannot file any new lawsuit or
appeal, as long as he is incarcerated, without first
prepaying the filing fee, unless he can show that he is in
imminent danger of serious physical injury. 28 U.S.C. §
1915(g). Petitioner has not made the required showing of
imminent danger of a serious physical injury in this case.
Therefore, he cannot take advantage of the initial partial
payment provision of Section 1915. Accordingly, if Petitioner
appeals, he must pay the $505 fee in full immediately. As
explained, however, Petitioner may challenge this
determination by filing a separate motion to proceed in
forma pauperis on appeal, with the Fifth Circuit, within
30 days of this order.