United States District Court, N.D. Texas, Dallas Division
JUVENAL GUEVARA, JR. TDCJ No. 1907012, Plaintiff,
DONULD TRUMP, ET AL., Defendants.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
L. HORAN UNITED STATES MAGISTRATE JUDGE.
pro se civil rights action filed by a Texas prisoner
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 Senior United States
District Judge A. Joe Fish. 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, Plaintiff Juvenal
Guevara, Jr. pays the full filing fee of $400.00.
Guevara brings this action against his family, President
Trump, White House employees, multiple celebrities -
including Magic Johnson, Oprah Winfrey, and Joel Osteen - and
prison officials. See Dkt. No. 2. And he moves for
leave to proceed in forma pauperis
(“IFP”). See Dkt. No. 3.
current allegations appear similar to those made in another,
recent action Guevara filed that was dismissed by another
judge of this Court. See Guevara v. No Last
Name, No. 3:18-cv-2389-B-BK, Dkt. No. 5 at 3 (N.D. Tex.
Sept. 9, 2018) (“As in his previous cases, Guevara
complains that he is in imminent danger because TDCJ
officers, Patricia Valdez, and various celebrities such as
Jennifer Lopez and Kim Kardashian are trying to kill him and
rape him with their ‘soul bod[ies]' and are
contaminating his food.” (citation omitted)), rec.
accepted, Dkt. No. 7 (N.D. Tex. Oct. 9, 2018). In that
case, the court also recounted Guevara's abusive
Guevara has accrued three strikes under section 1915(g).
Before this lawsuit was filed, district courts in Texas
dismissed as frivolous under 28 U.S.C. § 1915(e) four
non-habeas, civil actions that Guevara filed while confined
as an inmate. See Guevara v. Valdez, et al.,
1:17-CV-924 (W.D. Tex. Sep. 27, 2017) (dismissing as
frivolous); Guevara v. Patricia Valdez, No.
3:16-CV-2602-G-BN, 2017 WL 401243 (N.D. Tex. Jan. 9, 2017),
R. & R. accepted, 2017 WL 401243 (N.D. Tex. Jan.
30, 2017) (dismissing with prejudice under section 1915(e));
Guevara v. Patricia Valdez, 4:16-CV-3264 (S.D. Tex.
Jan. 23, 2017) (dismissing as frivolous); Guevara v.
Resendez, 1:16-CV-86 (W.D. Tex. February 29, 2016)
(same). One court also held previously that Guevara is barred
from filing civil lawsuits by the PLRA three-strikes
provision. See Guevara v. Patricia Valdez, et al.,
No. 6:18-CV-17 (W.D. Tex., Waco Div., Jan. 23, 2018).
Guevara, No. 3:18-cv-2389-B-BK, Dkt. No. 5 at 2.
Standards and Analysis
prisoner may not proceed in forma pauperis 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 this bar is when the prisoner is
“under imminent danger of serious physical
injury.” Id. But, in order to meet the
“imminent danger” requirement, “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))).
prisoner must also “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)).
the “specific allegations” must reflect
“ongoing serious physical injury” or “a
pattern of misconduct evidencing the likelihood of imminent
serious physical injury.” Martin v. Shelton,
319 F.3d 1048, 1050 (8th Cir. 2003). For example, as to
allegedly inadequate medical care, use of “the past
tense when describing” symptoms - which should be
corroborated by medical records or grievances - is not
sufficient to allege imminent danger. Stone v.
Jones, 459 Fed.Appx. 442, 2012 WL 278658, at *1 (5th
Cir. Jan. 31, 2012) (per curiam). And there must be a nexus
between the claims made and the imminent danger alleged.
See 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) (citations omitted),
aff'd, 571 Fed.Appx. 352 (5th Cir. 2014) (per
curiam). As Guevara's current civil action falls under
the three-strikes provision, he may not proceed without the
prepayment of fees unless he shows that he is subject to
imminent danger of serious physical injury. But his 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). The Court should therefore bar
Guevara from proceeding IFP. See Adepegba v.
Hammons, 103 F.3d 383, 388 (5th Cir. 1996).
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, ...