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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

BARRY EMMETT, §

#01383329, §

Plaintiff, §

 § No. 3:22-cv-01954-B (BT)

v. §

§

DIRECTOR, TDCJ-CID, § 

Defendant. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Plaintiff Barry Emmett, a state prisoner, filed a petition for a writ of 

habeas corpus under 28 U.S.C. § 2254 in Case Number 3:08-cv-2219-B. On 

September 1, 2022, the Court severed Emmett’s civil claims from that habeas 

action and opened this civil rights case. Emmett did not pay the filing fee in 

this case. Having screened Emmett’s complaint, the undersigned 

recommends the Court DISMISS the complaint as barred by the threestrikes provision of 28 U.S.C. § 1915(g). 

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)). 

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

complaint, and while he was incarcerated, Emmett 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, e.g., Emmett v. Littles, No. 3:11-cv-583-M (N.D. Tex.); 

Emmett v. Office of Clerk of Court, No. 7:10-cv-156-O (N.D. Tex); Emmett 

v. McGuire, et al., No. 10-10437 (5th Cir.). 

Because Emmett 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”). 

Emmett alleges that, on May 21, 2022, he was “forcibly beaten by 

guards” and “shut up with Haldol,” the “sister drug to Thorazine.” Compl. 1 

(ECF No. 2). His complaint is not dated, but it was received by the Court on 

June 22, 2022. Emmett fails to allege, much less demonstrate, that he was 

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

complaint, presumably weeks after the alleged May 21 incident. 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). Such dismissal is with prejudice to 

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

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

full payment of the $402.00 filing fee.

Signed September 8, 2022. 

______________________________

REBECCA RUTHERFORD

UNITED STATES MAGISTRATE JUDGE

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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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