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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

KEVIN JONES, §

Plaintiff, §

§

v. § No. 3:22-cv-00660-L (BT)

§

NFN SIMMONS, et al., § 

Defendants. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Plaintiff Kevin Jones, a state prisoner, filed a pro se civil action under 

42 U.S.C. § 1983. Jones did not pay the filing fee, but he did file a motion for 

leave to proceed in forma pauperis. Having screened Jones’s complaint and 

his motion, the undersigned recommends the Court DISMISS the complaint 

as barred by the three-strikes provision of 28 U.S.C. § 1915(g) and DENY the 

motion for leave to proceed in forma pauperis as moot. 

The “three strikes” provision of the Prison Litigation Reform Act 

(PLRA), 28 U.S.C. § 1915(g), precludes a prisoner from bringing a civil action 

in forma pauperis if on three or more prior occasions, while confined as a 

prisoner, he filed civil actions or appeals that were dismissed as frivolous, 

malicious, or for failure to state a claim. See Jackson v. Johnson, 475 F.3d 

261, 265 (5th Cir. 2017). Section 1915(g) “comports with the PLRA’s effort 

‘to filter out the bad claims filed by prisoners and facilitate consideration of 

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the good.’” Brown v. Megg, 857 F.3d 287, 291 (5th Cir. 2017) (quoting 

Coleman v. Tollefson, 575 U.S. 532, 135 S. Ct. 1759, 1762 (2015)). 

Jones has accrued three strikes under § 1915(g). Before filing this 

complaint, and while he was incarcerated as a prisoner, Jones filed at least 

three civil cases that were dismissed as frivolous or for failure to state a claim 

under 28 U.S.C. § 1915(e). See Jones v. Upcm, et al., No. 3:20-cv-862 (N.D. 

Tex. June 8, 2020); Jones v. Cuilc, et al., No. 3:20-cv-1375 (N.D. Tex. June 

26, 2020); Jones v. Davis-Director TDCJ-CID, No. 3:20-cv-1793 (N.D. Tex. 

July 29, 2020). Because Jones has accrued three strikes, § 1915(g) precludes 

him from proceeding in this action in forma pauperis unless he alleges he is 

in “imminent danger of serious physical injury” at the time of filing the 

complaint. See Banos v. O’Guin, 144 F.3d 883, 884 (5th Cir. 1998) (per 

curiam). To meet the imminent danger requirement of § 1915(g), the threat 

must be “real and proximate.” Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th 

Cir. 2003); see also Banos, 144 F.3d at 885 (Under § 1915(g), the court “must 

determine if danger exists at the time the plaintiff seeks to file his complaint 

or notice of appeal IFP”) (emphasis in original). Allegations of past harm 

are insufficient to show imminent harm because the harm alleged must 

constitute “genuine emergencies” where “time is pressing.” Heimermann v. 

Litscher, 337 F.3d 781, 782 (7th Cir. 2003) (per curiam); see also Banos, 144 

F.3d at 885 (finding the prisoner had “not alleged, much less established, 

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that he faced imminent danger of serious physical injury at the time that his 

notice of appeal was filed”). 

Here, Jones alleges that “these officials” of “higher rank” at the Wynn 

Farm in Walker County, Texas “keep putting poison in my food.” Compl. 4 

(ECF No. 3). He further alleges, “[t]his been happening for the last 2 

years[.]” Id. Finally, Jones alleges that the Assistant Wardens of the Wynn 

Unit threatened that they would “sooner/later get [him]” because he keeps 

writing them up. Id. 3. Under § 1915(g), Jones must demonstrate that he is 

in imminent danger of serious physical injury at the time he filed his 

complaint. See Newman v. Harris, 770 F. App’x 216, 217 (5th Cir. 2019) (per 

curiam). The allegations in his complaint fail to show he is in imminent 

danger of serious physical injury. See Heimermann, 337 F.3d at 782; see also 

Banos, 144 F.3d at 885. He is therefore barred from proceeding in forma 

pauperis under § 1915(g). 

Recommendation

The Court should DISMISS this civil action as barred by the threestrikes provision of 28 U.S.C. § 1915(g) and DENY Jones’s motion for leave 

to proceed in forma pauperis as moot. Such dismissal is with prejudice to 

the refiling of an in forma pauperis complaint raising the same claims as 

presented here, but without prejudice to the refiling of this complaint with 

full payment of the $402.00 filing fee.

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Signed March 25, 2022. 

______________________________

REBECCA RUTHERFORD

UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation shall be served on all 

parties in the manner provided by law. Any party who objects to any part of 

this report and recommendation must file specific written objections within 

14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV.

P. 72(b). To be specific, an objection must identify the specific finding or 

recommendation to which objection is made, state the basis for the 

objection, and specify the place in the magistrate judge's report and 

recommendation where the disputed determination is found. An objection 

that merely incorporates by reference or refers to the briefing before the 

magistrate judge is not specific. Failure to file specific written objections will 

bar the aggrieved party from appealing the factual findings and legal 

conclusions of the magistrate judge that are accepted or adopted by the 

district court, except upon grounds of plain error. See Douglass v. United 

Services Automobile Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996), modified by 

statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the time to file 

objections to 14 days).

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