IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

BARRY EMMETT, #1383329, )

Plaintiff, )

vs. ) No. 3:22-CV-1856-S (BH)

)

BOBBY LUMPKIN, )

Defendant. ) Referred to U.S. Magistrate Judge1

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

Based on the relevant filings and applicable law, the case should be summarily DISMISSED

as barred by the “three-strikes” rule of 28 U.S.C. § 1915(g) unless the plaintiff timely pays the full

filing fee for this case.

I. BACKGROUND

Barry Emmett (Plaintiff), an inmate in the Texas Department of Criminal Justice, filed a

petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging a state conviction. (See 

Emmett v. Director, No. 3:21-CV-1581-S (BH) (N.D. Tex. July 7, 2021), doc. 3. After he repeatedly

failed to either pay the $5 filing fee or file a completed motion to proceed in forma pauperis (IFP)

with a certificate of inmate trust account despite several extensions of time, one year after his

petition was received, his habeas case was finally dismissed for failure to prosecute or follow court

orders. (See id.; docs. 21, 29, 30.) In a barely legible handwritten two-page post-judgment filing

received in the habeas case, Plaintiff alleged that “Bobby Lumpkin should be sanctioned for denial

of access to court for not allowing $5 off account for 2 years.” (See doc. 2.) Because his claim that

he is being denied access to courts does not challenge his custody and seeks non-habeas relief that

is unavailable in a habeas action, the filing was construed as a new civil rights action under 42

1

 By Special Order No. 3-251, this pro se prisoner case has been automatically referred for findings and

recommendation. 

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U.S.C. § 1983 and filed in this case. (See doc. 3.) No process has been issued.

II. THREE STRIKES

As a prisoner apparently seeking to proceed without prepayment of fees, Plaintiff’s action

is subject to review under the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915. One of the

major changes promulgated by the PLRA is the “three-strikes” provision in § 1915(g). It provides

that inmates may not proceed without the prepayment of fees if they have previously brought three

or more civil actions or appeals in federal court that were dismissed as frivolous, malicious, or for

failure to state a claim upon which relief may be granted, unless they are in imminent danger of

serious physical injury. See Jackson v. Johnson, 475 F.3d 261, 265 (5th Cir. 2007).

Plaintiff has had at least three prisoner civil actions dismissed as frivolous, malicious, or for

failure to state a claim upon which relief may be granted. See Emmett v. State of Texas Corporation,

No. H-22-2504, 2022 WL 3156223 (S.D. Tex. Aug. 8, 2022) (listing eleven civil actions filed by

Plaintiff that have been dismissed as frivolous or for failure to state a claim). Under § 1915(g), he

may not proceed without the prepayment of fees unless he shows that he is subject to imminent

danger of serious physical injury. Plaintiff’s filing makes no allegations suggesting that he is in

imminent danger of serious physical injury. He must therefore prepay the filing fee before he may

proceed with his denial of access to courts case.

III. RECOMMENDATION

Plaintiff’s claims should be summarily DISMISSED without prejudice under 28 U.S.C. §

1915(g) unless he pays the full $402 filing fee2 prior to acceptance of this recommendation, or before

2

 A $52 administrative fee will be assessed in addition to the $350 filing fee, resulting in a total filing fee of $402 for

a civil action in which the plaintiff has not sought or been granted leave to proceed in forma pauperis. See District Court

Miscellaneous Fee Schedule. Where a prisoner plaintiff has been granted leave to proceed in forma pauperis, only the

$350 filing fee will be deducted from the prisoner’s account; the $52 administrative fee will not be deducted. Id. 

2

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a deadline otherwise established by the Court. 

SO RECOMMENDED this 23rd day of August, 2022.

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of these findings, conclusions and recommendation shall be served on all parties in

the manner provided by law. Any party who objects to any part of these findings, conclusions 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). In order 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 findings, conclusions 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 Servs. Automobile Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996). 

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

3

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