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Spence v. Taylor

United States District Court, E.D. Texas, Sherman Division

December 26, 2019

KENNETH SPENCE, #364541, a/k/a KENNETH EDWARD SPENCE, a/k/a SCOTT EDWARD PALMER, a/k/a EDWARD L. SPENCE Plaintiff,
v.
JAIME TAYLOR Defendant.

          ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          AMOS L. MAZZANT UNITED STATES DISTRICT JUDGE.

         Plaintiff Kenneth Spence is a pretrial detainee confined in the Collin County Detention Facility, awaiting trial on charges of impersonating a public servant, forgery of a financial document, and tampering with government records with intent to defraud. Mr. Spence, proceeding pro se and in forma pauperis, brought this civil rights lawsuit pursuant to 42 U.S.C. § 1983. The complaint was referred to United States Magistrate Judge Kimberly C. Priest Johnson, who issued a Report and Recommendation (Dkt. #57) concluding that Mr. Spence's civil rights lawsuit should be dismissed for purposes of in forma pauperis proceedings pursuant to 28 U.S.C. § 1915(g). Mr. Spence has filed objections (Dkt. #61). The Court reviews de novo the portions of the Magistrate Judge's findings to which objections have been raised. 28 U.S.C. § 636 (b)(1).

         Facts of the Case

         The complaint was filed on February 25, 2019. In his amended complaint (Dkt. #32), Mr. Spence stated that he is suing Collin County Detention Facility Programs Coordinator Jaime Taylor because he was allegedly denied access to courts causing him financial harm. Mr. Spence specifically asserted that he was improperly denied access to the jail law library and was denied “softbound law books from [another] facility.” He seeks compensatory and punitive damages as well as declaratory relief.

         Mr. Spence filed a motion for leave to proceed in forma pauperis on February 25, 2019. (Dkt. #3). The Court granted Mr. Spence permission to proceed in forma pauperis and ordered him to file an initial partial filing fee of $14.50. (Dkt. #4). On April 2, 2019, the initial partial filing fee of $14.50, was paid. On April 4, 2019, the Court issued an order for the collection and payment of the full filing fee. (Dkt. #8). On May 7, 2019, Mr. Spence paid $40.14, towards his outstanding filing fee. As of November 14, 2019, he has paid a total of $54.64, towards his outstanding filing fee.

         After the granting of Mr. Spence's motion for leave to proceed in forma pauperis, the Court became aware that Mr. Spence is barred from proceeding in forma pauperis because of the “three strikes” rule. 28 U.S.C. § 1915(g). The Southern District of Texas-Houston Division in Kenneth Spence v. Hilary Harrison-Dunn, et al. C. A. No. H-19-1660 (S.D. Tex. May 7, 2019), found that Mr. Spence had filed three lawsuits under an alias that were dismissed as frivolous or for failure to state a claim upon which relief may be granted. The district court in the Southern District of Texas found that the three lawsuits in question qualified as strikes under 28 U.S.C. § 1915(g).

         The Southern District noted that court records revealed Mr. Spence, filing as “Scott Edward Palmer, ” an alias, had a history of filing frivolous lawsuits. The Southern District relied on the following cases in making its determination that Mr. Spence was subject to the “three strikes” rule: Palmer v. Wayne Scott, C. A. No. 2:01-cv-0029 (N.D. Tex. Apr. 5, 2002); Palmer v. Wayne Scott, C. A. No. 2:00-cv-353 (N.D. Tex. June 12, 2001); and Palmer v. Wyeth, C. A. No. H-97-0042 (S.D. Tex. Mar. 24, 1997).

         The Southern District confirmed Mr. Spence, filing as “Scott Edward Palmer, ” filed all three “strike” lawsuits, and that he was barred from proceeding in forma pauperis. Public online records for the Fifth Circuit Court of Appeals show that Mr. Spence appealed the dismissals in all three lawsuits. The Fifth Circuit's records further show that he provided the same mailing address in all three appeals: P.O. Box 496891, Garland, Texas 75049-6891. Further research of public online records show that this private post office box was registered to a business enterprise operated by Kathleen Spence. Moreover, a review of records relevant to each lawsuit traced Mr. Spence's birth date in each refer to the same date, October 2, 1956.

         Mr. Spence filed a notice of appeal in response to the Southern District's Order of Dismissal and Final Judgment in in Kenneth Spence v. Hilary Harrison-Dunn, et al. C. A. No. H-19-1660 (S.D. Tex. May 7, 2019). His appeal was dismissed for want of prosecution on October 9, 2019. See Kenneth Spence v. Hilary Harrison-Dunn, et al, No. 19-20428 (5th Cir. Oct. 9, 2019).

         In light of the information from the Southern District, the Court vacated its order granting Mr. Spence permission to proceed in forma pauperis and its Collection Order (Dkt. ##4, 8, 56). Judge Johnson issued a Report and Recommendation in this case on October 12, 2019. (Dkt. #57).

         Report and Recommendation

         Judge Johnson recommended that Mr. Spence's motion to proceed in forma pauperis be denied pursuant to 28 U.S.C. § 1915(g) (Dkt. ##3, 57, p. 5). Judge Johnson adopted the findings of the Southern District-Houston Division in Kenneth Spence v. Hilary Harrison-Dunn, et al. C. A. No. H-19-1660 (S.D. Tex. May 7, 2019), in recommending the dismissal of Mr. Spence's lawsuit pursuant to 28 U.S.C. § 1915(g). The Southern District held that Mr. Spence has a history of filing frivolous lawsuits and the following three lawsuits were dismissed as frivolous or for failure to state a claim upon which relief may be granted before the present lawsuit was filed: Palmer v. Wayne Scott, C. A. No. 2:01-cv-0029 (N.D. Tex. Apr. 5, 2002); Palmer v. Wayne Scott, C. A. No. 2:00-cv-353 (N.D. Tex. June 12, 2001); and Palmer v. Wyeth, C. A. No. H-97-0042 (S.D. Tex. Mar. 24, 1997). He has also had at least one case dismissed pursuant to the “three strikes” provisions of 28 U.S.C. § 1915(g): Kenneth Spence v. Hilary Harrison-Dunn, et al. C. A. No. H-19-1660 (S.D. Tex. May 7, 2019).

         Congress decided to end the practice by prisoners of repeatedly filing frivolous lawsuits and appeals when it passed the Prison Litigation Reform Act in 1996. A prisoner may not file any lawsuits or appeals in forma pauperis if he has three or more lawsuits or appeals previously dismissed as “frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). The provision was designed to stop the type of abusive litigious practices being employed by prisoners. Mr. Spence had three lawsuits dismissed as frivolous prior to the filing of the present lawsuit.

         Based on the allegations in his original and amended complaints (Dkt. ## 1, 32), Judge Johnson found that Mr. Spence had not alleged any facts showing he was “under imminent danger of serious physical injury” at the time he filed this lawsuit. See Banos v. O'Guin, 144 F.3d 883, 884-85 (5th Cir. 1998). In his pending second amended complaint (Dkt. #51), Mr. Spence also did not plead any facts which would indicate he was “under imminent danger of serious physical injury” at the time he filed this lawsuit. His allegations of denial of access to courts do not give rise to an inference that he was under imminent danger of serious physical injury at the time he filed the lawsuit. “[G]eneral allegations not grounded in specific facts indicating serious physical ...


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