United States District Court, E.D. Texas, Beaumont Division
ORDER OVERRULING PLAINTIFF'S OBJECTIONS AND
ADOPTING THE MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION
MICHAEL J. TRUNCALE UNITED STATES DISTRICT JUDGE
Plaintiff
Samad Sefiane (“Plaintiff” or “Mr.
Sefiane”), a prisoner confined at the Wynne
Unit[1');">1" name="FN1');">1" id="FN1');">1">1');">1]
of the Texas Department of Criminal Justice, Correctional
Institutions Division (TDCJ-CID), proceeding pro se,
filed this civil rights action pursuant to 42 U.S.C. §
1');">1983 against the Jefferson County Correctional Facility
Health Care Provider.[2] Plaintiff requested leave to proceed
in forma pauperis. [Dkt. 1');">1]. The Court ordered that
this matter be referred to the Honorable Zack Hawthorn,
United States Magistrate Judge, at Beaumont, Texas, for
consideration pursuant to applicable laws and orders of this
Court. The magistrate judge recommends denying plaintiff
leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1');">191');">15(g) and dismissing the action because
Plaintiff does not face imminent physical danger.
I.
BACKGROUND
Plaintiff's
complaint concerns his medical treatment (or the lack
thereof) at the Jefferson County Correctional Facility and at
the Wynne Unit.[3] While in the Jefferson County Correctional
facility, Plaintiff alleges that he suffered “severe
chest pains due to the fact of being assaulted by victim and
officer.” [Dkt. 1');">1, p. 6]. Plaintiff's only other
allegation against the Jefferson County Correctional facility
is that the “healthcare provider refused to release
[his] medical records.” [Dkt. 1');">1, p. 7].
II.
DISCUSSION
The
Court has received and considered the Report and
Recommendation of United States Magistrate Judge, along with
the record and the pleadings. Mr. Sefiane filed a
“Motion for Reconsideration and New Trial” [Dkt.
6], which the Court liberally construes as objections to the
magistrate judge's Report and Recommendation. See
Erickson v. Pardus, 1');">1 U.S. 89');">551');">1 U.S. 89, 94 (2007) (holding that
a document filed pro se is to be liberally construed, and a
pro se complaint, however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by
lawyers); Estelle v. Gamble, 429 U.S. 97, 1');">106
(1');">1976). Because Plaintiff filed objections to the magistrate
judge's Report and Recommendation, the Court has
conducted a de novo review of the objections in
relation to the pleadings and the applicable law.
See Fed. R. Civ. p. 72(b). The Court accepts the
magistrate judge's Report and
Recommendation.[4]
For the
following reasons, the Court finds that Plaintiff's
objections are without merit, thus Plaintiff's motion for
leave to proceed in forma pauperis [Dkt. 1');">1] is
DENIED.
1');">1.
The Prison Litigation Reform Act
28
U.S.C. § 1');">191');">15 is designed to ensure that indigent
litigants have meaningful access to the federal courts, in
other words no citizen shall be denied an opportunity to
commence an action solely because poverty makes it impossible
to pay the costs of litigation. Denton v. Hernandez,
504 U.S. 25, 31');">1 (1');">1992). However, a litigant whose litigation
costs are assumed by the public lacks an economic incentive
to refrain from filing frivolous lawsuits. Ball v.
Famiglio, 726 F.3d 448, 452 (3d Cir. 201');">13) (internal
citation omitted). To reduce the quantity and improve the
quality of prisoner suits, the Prison Litigation Reform Act
(“PLRA”) created the “three strikes”
rule. 28 U.S.C. § 1');">191');">15(g).
The
“three strikes” rule bars an inmate who has had
three prior actions or appeals dismissed as frivolous,
malicious, or for failure to state a claim from proceeding in
a civil action in forma pauperis. Martin v.
Shelton, 1');">19 F.3d 1');">1048');">31');">19 F.3d 1');">1048, 1');">1050 (8th Cir. 2003);
Abdul-Akbar v. McKelvie, 239 F.3d 307, 31');">14 (3d Cir.
2001');">1) (en banc). However, the prisoner is not barred from
proceeding in the action if they are under imminent danger of
serious physical injury at the time the action is filed. 28
U.S.C. § 1');">191');">15(g). Additionally, the three strikes
provision does not bar the inmate from filing additional
actions, it is only a bar to proceed in forma
pauperis (free of litigation costs). Shelton,
31');">19 F.3d at 1');">1050.
The
Court finds that the “three strikes” rule applies
to Plaintiff's action because he has filed at least three
prior lawsuits that were dismissed as frivolous or for
failure to state a claim upon which relief may be granted.
See Sefiane v. Beaumont Police Dep't, No.
1');">1:1');">18-CV-24 (E.D. Tex. Feb 22, 201');">18); Sefiane v.
Desshotel, No. 1');">1:1');">18-CV-54 (E.D. Tex. April 23, 201');">18);
Sefiane v. District Attorney 354, No. 1');">1:1');">18-CV-275
(E.D. Tex. Aug. 1');">16, 201');">18).
2.
Plaintiff does not face imminent danger
In
McAlphin, the Eighth Circuit held that an inmate
made sufficient pleadings to show that he faced imminent
danger. McAlphin v. Toney, 1');">1 F.3d 709');">281');">1 F.3d 709, 71');">11');">1 (8th
Cir. 2002). There, the inmate suffered an oral infection
because he was denied several tooth extractions due to a
deliberate indifference to his serious medical needs.
Id. The Eighth Circuit also found imminent danger
when an inmate was placed near his “enemies” and
stabbed on multiple occasions, despite the inmate's plea
to be relocated. Ashley v. Dilworth, 1');">147 F.3d 71');">15');">1');">147 F.3d 71');">15,
71');">17 (8th Cir. 1');">1998) (per curiam). In both cases, the inmates
were facing ongoing threats to their wellbeing.
Unlike
those cases, Plaintiff does not face an ongoing danger from
the Jefferson County Correctional Facility Healthcare
Provider because he is no longer at that facility. [Dkt. 1');">1,
p. 7]. On April 1');">13, 201');">19, Plaintiff was relocated to the
Wynne Unit. [Dkt. 1');">1, p. 7]. Several months later on August 8,
201');">19 Plaintiff initiated this suit. [Dkt. 1');">1]. Therefore, it
is ...