IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ANTHONY FAILS, §

#201484, §

PLAINTIFF, §

§

V. § CIVIL CASE NO. 3:22-CV-996-X-BK

§

IRS, ET AL., §

DEFENDANTS. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636(b) and Special Order 3, this pro se case was referred to the 

United States magistrate judge for case management, including the issuance of findings and a 

recommended disposition where appropriate. Plaintiff Anthony Fails, an inmate in the Florida 

Department of Correction (“FDOC”), filed an amended complaint against the Internal Revenue 

Service(“IRS”) and the FDOC, along with a motion for leave to proceed in forma pauperis. 

Doc. 11; Doc. 12. Nevertheless, upon review of the relevant pleadings and applicable law, this 

case should be DISMISSED as barred by three strikes. 

I. ANALYSIS

The “three-strike” 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 in federal court that 

were dismissed as frivolous or malicious, or for failing to state a claim. Jackson v. Johnson, 475 

F.3d 261, 265 (5th Cir. 2007); see also Brown v. Megg, 857 F.3d 287, 290-91 (5th Cir. 2017)

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(“[S]ection 1915(g) comports with the PLRA’s effort ‘to filter out the bad claims filed by 

prisoners and facilitate consideration of the good.’” (quoted case omitted)).

The United States Court of Appeals for the Eleventh Circuit previously found that Fails 

had accrued three strikes under § 1915(g) and, thus, he was labeled a “three-striker under the 

Prison Litigation Reform Act . . . for purposes of future matters.” Fails v. Secretary, Dep’t of 

Corrections, No. 18-13831-D (11th Cir. Jan. 31, 2019). Likewise, other courts have found Fails 

was barred by three strikes. See Fails v. Jones , No. 3:16-CV-1239 (M.D. Fla., Sep. 30, 2016) 

(identifying three qualifying strikes: No. 3:09-CV-15 (N.D. Fla. Sep. 30, 2016) (dismissed as 

malicious); No. 3:09-CV-33 (N.D. Fla. Feb. 18, 2009) (dismissed for failure to state a claim); 

No. 4:08-CV-471 (N.D. Fla. Jan 26, 2009) (same)). 

Having accumulated three “strikes,” § 1915(g) precludes Fails from proceeding in this 

action in forma pauperis unless he alleges that 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). In the case sub judice, Fails asserts that the IRS approved and issued three 

Economic Impact Payments (“EIP”) as required by the Coronavirus Aid, Relief, and Economic 

Security Act (CARES Act), Pub. L. No. 116-136, 134 Stat. 281 (2020). Doc. 11 at 4. Still, he 

contends that the FDOC improperly took the second and third checks in violation of the Takings 

Clause of the Fifth Amendment. Doc. 11 at 4; see also Doc. 8 at 1-2. Even when liberally 

construed, his complaint is wholly devoid of any allegation of imminent danger of serious 

physical injury. Fails is thus barred from proceeding in forma pauperis under § 1915(g). 

II. CONCLUSION

Accordingly, Fails’ motion for leave to proceed in forma pauperis should be DENIED 

and this action should be DISMISSED as barred by the three-strike provision of 28 U.S.C. § 

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1915(g). Such dismissal is with prejudice to Fails refiling an in forma pauperis lawsuit raising 

the same claims as herein presented, but without prejudice to him refiling this lawsuit with full 

payment of filing and administrative fees of $402.00. 

SO RECOMMENDED on June 28, 2022.

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation will 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). An objection must identify the finding or recommendation to which objection is 

made, the basis for the objection, and the place in the magistrate judge’s report and 

recommendation 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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