IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

DAVID WASHINGTON, §

§

Plaintiff, §

§

v. § 2:22-CV-178-Z-BR

§

ADAM GONZALES, et al., §

§

Defendant. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION TO DISMISS

COMPLAINT AS THREE STRIKES BARRED

This is a civil rights action brought by David Washington, a Texas inmate appearing pro 

se, against state employees pursuant to 42 U.S.C. § 1983. Plaintiff is an inmate confined in the 

Connally Unit of TDCJ in Kenedy, Texas. Plaintiff has not filed an application to proceed in forma 

pauperis, nor has he paid the $402.00 filing fee. While incarcerated, Plaintiff has filed at least three 

prior civil actions that were dismissed as frivolous or for failure to state a claim. Plaintiff has not 

shown that at the time of the filing of this lawsuit, he was “under imminent danger of serious 

physical injury.” Therefore, it is recommended that this action be dismissed as barred by the threestrike provision of 28 U.S.C. § 1915(g)

In support of his Complaint, Plaintiff alleges information about him is being improperly 

shared by prison staff and inmates. Based upon that allegation, Plaintiff purports to sue the 

following Defendants: Adam Gonzales, Senior Warden; Joe Tovar, Assistant Warden; Floyd 

Keesee, Assistant Warden; Trent Peacock, Assistant Warden, and Amy Garcia, Head of 

Classification, all of the Clements Unit. (ECF 3 at 3). As relief, Plaintiff seeks the following: $75 

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billion, checks for his kids and grandkids, and 24-hour security of his home following his release 

from prison. (Id. at 4).

The PLRA, enacted into law on April 26, 1996, amended 28 U.S.C. § 1915 as it relates to 

civil actions filed by prisoners in federal court. Among the changes effected by the PLRA was the 

inclusion of 28 U.S.C. § 1915(g), also known as the “three-strike” provision. Section 1915(g) 

precludes a prisoner from bringing a civil action in forma pauperis if on three or more prior 

occasions, he filed civil actions or appeals in federal court which were dismissed, either by a 

district court or appellate court, as being frivolous, malicious, or for failing to state a claim. See 

Jackson v. Johnson, 475 F.3d 261, 265 (5th Cir. 2007). When a district court dismisses a case as 

frivolous or for failure to state a claim, such a dismissal counts as a “strike” under 1915(g) once 

the judgment becomes final. See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). A 

district court’s dismissal is final when the prisoner has exhausted avenues of appeal or has waived 

any appellate rights. Id.

A prisoner is barred from proceeding in forma pauperis if he is subject to the “three-strike” 

provision “unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 

1915(g); see also Banos v. O’Guin, 144 F.3d 883, 884 (5th Cir. 1998). The complaint must present 

a claim that Plaintiff is in danger of imminent serious physical injury to overcome the bar. See 

Carson v. Johnson, 112 F.3d 818, 822-823 (5th Cir. 1997). In applying the “three-strike” provision 

of 1915(g), a court may consider case dispositions that occurred prior to the effective date of the 

PLRA. See Adepegba, 103 F.3d at 387-88. A review of the Public Access to Court Electronic 

Records (“PACER”) and the Sanction Database reflects that Plaintiff has had at least three prior 

actions dismissed with prejudice as frivolous or for failure to state a claim, as outlined herein; thus, 

Plaintiff is barred from proceeding in forma pauperis as he requests.

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While incarcerated, Plaintiff has filed at least three prior civil actions that were dismissed 

as frivolous or for failure to state a claim. See, e.g., Washington v. Tupa, et al., No. 5:22-cv-00889 

(W.D. Tex. Aug. 30, 2022) (noting Washington’s history, which includes at least seven strikes, 

and dismissing the civil action under 28 U.S.C. $ 1915(g)). Therefore, Washington may not file 

another civil action IFP while incarcerated unless he is in “imminent danger of serious physical 

injury.” 28 U.S.C. § 1915(g).

Plaintiff has had the requisite number cases dismissed as barred by the three-strike 

provision over the last ten years. Plaintiff also fails to meet the very limited exception that he was 

under imminent danger of serious physical injury at the time he filed this lawsuit.

RECOMMENDATION

For the above reasons, it is the recommendation of the undersigned that the complaint filed 

by Plaintiff be dismissed as barred by the three strikes provision of 28 U.S.C. § 1915(g). This 

recommendation is without prejudice to Plaintiff’s right to reopen the case if he pays the $402.00 

filing and administrative fees and files a motion to reopen within thirty days of the date of final 

judgment.

INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a copy of these Findings, Conclusions 

and Recommendation to each party by the most efficient means available.

IT IS SO RECOMMENDED. 

ENTERED December 15, 2022.

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* NOTICE OF RIGHT TO OBJECT *

Any party may object to these proposed findings, conclusions and recommendation. In 

the event parties wish to object, they are hereby NOTIFIED that the deadline for filing objections 

is fourteen (14) days from the date of filing as indicated by the “entered” date directly above the 

signature line. Service is complete upon mailing, Fed. R. Civ. P. 5(b)(2)(C), or transmission by 

electronic means, Fed. R. Civ. P. 5(b)(2)(E). Any objections must be filed on or before the 

fourteenth (14th) day after this recommendation is filed as indicated by the “entered” date. 

See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b)(2); see also Fed. R. Civ. P. 6(d).

Any such objections shall be made in a written pleading entitled “Objections to the 

Findings, Conclusions and Recommendation.” Objecting parties shall file the written objections 

with the United States District Clerk and serve a copy of such objections on all other parties. A 

party’s failure to timely file written objections shall bar an aggrieved party, except upon grounds 

of plain error, from attacking on appeal the unobjected-to proposed factual findings, legal 

conclusions, and recommendation set forth by the Magistrate Judge and accepted by the district 

court. See Douglass v. United Services Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en 

banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1), as recognized in ACS 

Recovery Servs., Inc. v. Griffin, 676 F.3d 512, 521 n.5 (5th Cir. 2012); Rodriguez v. Bowen, 857 

F.2d 275, 276-77 (5th Cir. 1988).

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