United States District Court, N.D. Texas, Dallas Division
KEVIN JEROME JONES TDCJ No. 1169005, Plaintiff,
LORIE DAVIS, 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 in substance
a pro se civil rights case, using the 28 U.S.C.
§ 2254 habeas petition form. See Dkt. No. 2.
And he has moved for leave to proceed in forma
pauperis (“IFP”). See Dkt. No. 3.
action has been referred to the undersigned United States
magistrate judge under 28 U.S.C. § 636(b) and a standing
order of reference from United States District Judge Sam A.
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.
United States Court of Appeals for the Fifth Circuit put the
question in another action brought by a state prisoner,
[b]oth 28 U.S.C. § 2254 and 42 U.S.C. § 1983 offer
relief to those improperly confined by the government. Which
statutory vehicle to use depends on the nature of the claim
and the type of relief requested, the instructive principle
being that challenges to the fact or duration of confinement
are properly brought under habeas, while challenges to the
conditions of confinement are properly brought under §
Poree v. Collins, 866 F.3d 235, 243 (5th Cir. 2017)
his claims are difficult to decipher, based on the grievance
attached to his complaint, Jones challenges neither the fact
nor the duration of his confinement but instead the meals
provided to him by prison officials. See Dkt. No. 2
at 11-14. Such a claim, related to conditions of confinement,
is civil in nature. See, e.g., Spencer v. Bragg, 310
Fed.Appx. 678, 679 (5th Cir. 2009) (per curiam) (“Where
‘a prisoner challenges an unconstitutional condition of
confinement or prison procedure that affects the timing of
his release from custody,' the proper vehicle is a civil
rights action if a determination in the prisoner's favor
will not automatically result in his accelerated
release.” (quoting Carson v. Johnson, 112 F.3d
818, 820-21 (5th Cir. 1997))); cf. Jackson v. United
States, No. 3:18-cv-265-M-BN, 2018 WL 2164526, at *1
(N.D. Tex. Apr. 16, 2018) (“While Jackson's
Replevin Complaint has been docketed as a petition for writ
of mandamus, this Court must construe a prisoner's
pro se filings, no matter how labeled, based on the
relief sought.”), rec. accepted, 2018 WL
2151328 (N.D. Tex. May 10, 2018).
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 also “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 ...