United States District Court, N.D. Texas, Dallas Division
KEVIN JEROME JONES (TDCJ No. 1169005), Plaintiff,
M. BYERLY, ET AL., Defendants.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
L. HORAN UNITED STATES MAGISTRATE JUDGE
Kevin Jerome Jones, a Texas prisoner, has filed a pro
se civil rights complaint alleging that he was denied
due process related to a disciplinary proceeding at
TDCJ's Eastham Unit and requesting damages. See
Dkt. No. 3.
has moved for leave to proceed in forma pauperis
(“IFP”). See Dkt. No. 4.
action 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 Chief
Judge Barbara M. G. Lynn.
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, Jones pays the full filing fee of $400.00.
Background, Legal Standards, and Analysis
may not proceed IFP if, while incarcerated or detained in any
facility, they have filed three or more civil actions or
appeals in federal court that were dismissed as frivolous,
malicious, or for failure to state a claim. See 28
U.S.C. § 1915(g).
is subject to this three-strikes bar. See Jones v.
Spurlock, No. 3:19-cv-66-G-BT (N.D. Tex.), Dkt. No. 6 at
2 (finding that Jones “has accrued three strikes under
§ 1915(g)” (citing Jones v. Bd. of Pardons
& Parole, No. 18-11555 (5th Cir. Jan. 4, 2019)
(finding that he was barred from proceeding IFP due to three
strikes and dismissing appeal for failure to pay the filing
fee))); id., Dkt. No. 9 (judgment dismissing
Jones's action as barred by Section 1915(g)); see
also Jones v. Roberts, No. 9:19-CV-65, 2019 WL 2521141
(E.D. Tex. May 15, 2019), rec. adopted, 2019 WL
2515316 (N.D. Tex. June 17, 2019) (recognizing that Jones is
barred by Section 1915(g)); Jones v. Hutto, No.
3:19-cv-1359-N-BN, 2019 WL 3307068 (N.D. Tex. June 11, 2019),
rec. accepted, 2019 WL 3304791 (N.D. Tex. July 23,
2019) (same); Jones v. Johnson, No. 9:19-CV-95, 2019
WL 3782137 (E.D. Tex. June 10, 2019), rec. adopted,
2019 WL 3776375 (E.D. Tex. Aug. 10, 2019) (same).
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” exception, “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 “allege specific facts” to support
the imminent-danger exception. 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
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).
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).
Jones'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 to show that he
currently is in imminent danger of serious physical injury as
to overcome Section 1915(g). The Court should therefore bar
Jones from proceeding IFP. See Adepegba v. Hammons,
103 F.3d 383, 388 (5th Cir. 1996).