1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

KEVIN JEROME JONES, §

#01169005, §

Petitioner, §

 § No. 3:22-cv-02357-N (BT)

v. §

§

B. LUMPKIN, et al., § 

Respondents. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Petitioner Kevin Jerome Jones, a state prisoner, filed a pro se habeas 

action under 28 U.S.C. § 2254. Because Jones argues that his “civil rights” 

were violated “without any distinction of any kind,” the Court construes his 

filing as a civil action filed pursuant to 42 U.S.C. § 1983. Compl. 6 (ECF No. 

2). See Cook v. Texas Dep’t of Criminal Justice Transitional Planning 

Dep't., 37 F.3d 166, 168 (5th Cir. 1994) (challenges regarding conditions of 

confinement are properly construed as civil rights challenges under § 1983). 

Jones did not pay the filing fee. Having screened Jones’s complaint, the 

undersigned recommends that the complaint be DISMISSED as barred by 

the three strikes 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, 

Case 3:22-cv-02357-N-BT Document 3 Filed 10/28/22 Page 1 of 3 PageID 12
2

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 

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)).

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

complaint, and while he was incarcerated as a prisoner, Jones 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 Jones v. Upcm, et al., No. 3:20-cv-862 (N.D. 

Tex. June 8, 2020); Jones v. Cuilc, et al., No. 3:20-cv-1375 (N.D. Tex. June 

26, 2020); Jones v. Davis-Director TDCJ-CID, No. 3:20-cv-1793 (N.D. Tex. 

July 29, 2020). Because Jones has accrued three strikes, § 1915(g) precludes 

him 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). Jones alleges that he is “still threaten[ed] by [an unstated] him,” 

but he does not allege that he was in imminent danger of serious physical 

injury at the time he filed his complaint. Compl. 2 (ECF No. 2). 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 

Case 3:22-cv-02357-N-BT Document 3 Filed 10/28/22 Page 2 of 3 PageID 13
3

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

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

full payment of the $402.00 filing fee.

Signed October 28, 2022.

________________________________________

REBECCA RUTHERFORD

UNITED STATES MAGISTRATE JUDGE

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).

Case 3:22-cv-02357-N-BT Document 3 Filed 10/28/22 Page 3 of 3 PageID 14