IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

KEVIN JEROME JONES, § 

TDCJ No. 1169005, § 

 § 

Plaintiff, § 

§ 

V. § No. 3:22-cv-2082-S-BN 

§ 

MR. BOWERS, ET AL., § 

§ 

Defendants. § 

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE 

UNITED STATES MAGISTRATE JUDGE 

Plaintiff Kevin Jerome Jones, a Texas prisoner proceeding pro se, brings claims 

that are difficult decipher, but they appear related to grievances (concerning 

maintenance complaints) that Jones filed at the facility where he is incarcerated. See

Dkt. No. 2. Jones moves for leave to proceed in forma pauperis (IFP). See Dkt. No. 3. 

And the presiding United States district judge referred Jones’s lawsuit to the 

undersigned United States magistrate judge for screening under 28 U.S.C. § 636(b) 

and a standing order of reference. 

The undersigned enters these findings of fact, conclusions of law, and 

recommendation that the Court should summarily dismiss this action without 

prejudice under 28 U.S.C. § 1915(g) unless, within the time to file objections to this 

recommendation or by some other deadline established by the Court, Jones pays the 

full filing fee of $402.00. 

Prisoners may not proceed IFP if, while incarcerated or detained in any facility, 

they have filed three or more civil actions or appeals in federal court that were 

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dismissed as frivolous, malicious, or for failure to state a claim. See 28 U.S.C. § 

1915(g). 

Jones is subject to this three-strikes bar. See Jones v. Spurlock, No. 3:19-cv-66-

G-BT (N.D. Tex.), Dkt. No. 6 at 2 (finding that Jones “has accrued three strikes under 

§ 1915(g)” (citing Jones v. Bd. of Pardons & Parole, No. 18-11555 (5th Cir. Jan. 4, 

2019) (finding that he was barred from proceeding IFP due to three strikes and 

dismissing appeal for failure to pay the filing fee))); id., Dkt. No. 9 (judgment 

dismissing Jones’s action as barred by Section 1915(g)).1

The only exception to this bar is when the prisoner is “under imminent danger 

of serious physical injury.” 28 U.S.C. § 1915(g). But, in order to meet the “imminent 

danger” exception, “the ‘threat or prison condition [must be] real and proximate.’” 

Valdez v. Bush, No. 3:08-cv-1481-N, 2008 WL 4710808, at *1 (N.D. Tex. Oct. 24, 2008) 

(quoting Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003)). “Allegations of past 

harm do not suffice – the harm must be imminent or occurring at the time the 

complaint is filed.” Id.; see also McGrew v. La. State Penitentiary Mental Health Dep’t, 

459 F. App’x 370, 370 (5th Cir. 2012) (per curiam) (“The determination whether a 

prisoner is under ‘imminent danger’ must be made at the time the prisoner seeks to 

file his suit in district court, when he files his notice of appeal, or when he moves for 

1 See also, e.g., Jones v. Roberts, No. 9:19-CV-65, 2019 WL 2521141 (E.D. Tex. 

May 15, 2019), rec. adopted, 2019 WL 2515316 (N.D. Tex. June 17, 2019) 

(recognizing that Jones is barred by Section 1915(g)); Jones v. Hutto, No. 3:19-cv1359-N-BN, 2019 WL 3307068 (N.D. Tex. June 11, 2019), rec. accepted, 2019 WL 

3304791 (N.D. Tex. July 23, 2019) (same); Jones v. Johnson, No. 9:19-CV-95, 2019 

WL 3782137 (E.D. Tex. June 10, 2019), rec. adopted, 2019 WL 3776375 (E.D. Tex. 

Aug. 10, 2019) (same). 

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IFP status.” (citing Baños v. O’Guin, 144 F.3d 883, 884-85 (5th Cir. 1998))). 

A prisoner must also “allege specific facts” to support the imminent-danger 

exception. Valdez, 2008 WL 4710808, at *1. “General allegations that are not 

grounded in specific facts which indicate that serious physical injury is imminent are 

not sufficient to invoke the exception to § 1915(g).” Id. (quoting Niebla v. Walton Corr. 

Inst., No. 3:06-cv-275-LAC-EMT, 2006 WL 2051307, at *2 (N.D. Fla. July 20, 2006)). 

The “specific allegations” must therefore reflect “ongoing serious physical 

injury” or “a pattern of misconduct evidencing the likelihood of imminent serious 

physical injury.” Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). For example, 

as to allegedly inadequate medical care, use of “the past tense when describing” 

symptoms (which should be corroborated by medical records or grievances) does not 

allege imminent danger. Stone v. Jones, 459 F. App’x 442, 2012 WL 278658, at *1 (5th 

Cir. Jan. 31, 2012) (per curiam). And there must be a nexus between the claims made 

and the imminent danger alleged. See Stine v. Fed. Bureau of Prisons Designation & 

Sentence Computation Unit, No. 3:13-cv-4253-B, 2013 WL 6640391, at *2 (N.D. Tex. 

Dec. 17, 2013) (citations omitted), aff’d, 571 F. App’x 352 (5th Cir. 2014) (per curiam). 

As Jones’s current civil action falls under the three-strikes provision, he may 

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

imminent danger of serious physical injury. But his complaint lacks substantive 

factual allegations to show that he currently is in imminent danger of serious physical 

injury as to overcome Section 1915(g). The Court should therefore bar Jones from 

proceeding IFP. See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). 

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And, insofar as Jones, convicted by a state court in this district, is not 

incarcerated in this district and venue may not be proper in this district, see 28 U.S.C. 

§ 1391(b), transfer of this case would not be in the interest of justice for the reasons 

set out above, see id. §§ 1404(a), 1406(a). Nor does the improper venue statute protect 

Jones from his choice of the wrong venue. See Olberding v. Ill. Cent. Ry. Co., 346 U.S. 

338, 340 (1953) (“[A] plaintiff, by bringing the suit in a district other than that 

authorized by the statute, relinquishe[s] his right to object to the venue.”).2 But, if 

Jones does pay the filing fee or if the Court otherwise finds a basis to serve his 

complaint, venue could be revisited at that time. 

Recommendation

The Court should summarily dismiss this action without prejudice under 28 

U.S.C. § 1915(g) unless, within the time to file objections to this recommendation or 

by some other deadline established by the Court, Plaintiff Kevin Jerome Jones pays 

the full filing fee of $402.00. 

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

2 Cf. Utterback v. Trustmark Nat’l Bank, 716 F. App’x 241, 244 (5th Cir. 2017) 

(per curiam) (“When a case is filed in the wrong venue, 28 U.S.C. § 1406(a) instructs 

district courts either to dismiss or, ‘if it be in the interest of justice,’ to transfer to a 

district where venue is proper. Section 1406(b) adds that ‘[n]othing in this chapter 

shall impair the jurisdiction of a district court of any matter involving a party who 

does not interpose timely and sufficient objection to venue.’ Like personal 

jurisdiction, venue is ‘designed to protect the defendant against the risk that a 

plaintiff will select an unfair or inconvenient place of trial.’ Therefore, ‘a plaintiff, by 

bringing the suit in a district other than that authorized by the statute, 

relinquishe[s] his right to object to the venue.’ Where defendants waive their 

objection to venue, as they did in this case, 28 U.S.C. § 1406(a) affords plaintiffs no 

relief.” (citations omitted)). 

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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. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996). 

DATED: September 22, 2022 

 

 _________________________________________ 

DAVID L. HORAN 

UNITED STATES MAGISTRATE JUDGE 

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