IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

LOUIS B. STREDIC, SR., ID # 789666, )

Plaintiff, )

vs. ) No. 3:05-CV-1494-B

)

VETERANS ADMINISTRATION )

REGIONAL OFFICE, et al., )

Defendants. )

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b), and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The

findings, conclusions, and recommendation of the Magistrate Judge are as follows:

I. BACKGROUND

Plaintiff is an inmate in the Texas prison system. The Court received the instant civil action

from plaintiff on July 25, 2005. On August 11, 2005, the Court received an application to proceed

in forma pauperis. On November 15, 2005, the Court found that the application should be denied

based on the three-strikes provision of 28 U.S.C. § 1915(g). (See Order of Nov. 15, 2005, at 1-2.)

However, the Court deemed it appropriate to grant plaintiff thirty days to pay the full filing fee of

$250.00 to the Clerk of the Court before recommending that in forma pauperis be denied. (Id.) The

Court also admonished plaintiff that failure to pay the filing fee within the time allotted would result

in a recommendation that in forma pauperis be denied and that this action be dismissed without

prejudice for failure to comply with a court order under Fed. R. Civ. P. 41(b). (Id.) Subsequent to

that order, plaintiff filed three documents in this action, but has not paid the requisite filing fee. 

 

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 II. THREE STRIKES

Because plaintiff is a prisoner, this 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 set forth in § 1915(g). That provision states:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action

or proceeding under this section, if the prisoner has, on 3 or more prior occasions,

while incarcerated or detained in any facility, brought an action or appeal in a court

of the United States that was dismissed on the grounds that it is frivolous, malicious,

or fails to state a claim upon which relief may be granted, unless the prisoner is under

imminent danger of serious physical injury.

In short, 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.

A review of relevant court records indicates that plaintiff’s current filing falls under the

PLRA “three-strikes” provision. On at least three prior occasions, plaintiff has had a prisoner civil

action or appeal dismissed as frivolous, malicious, or for failure to state a claim upon which relief may

be granted. See Stredic v. Yenning, No. 5:01-CV-0234-C (N.D. Tex. Oct. 15, 2001) (order of

dismissal); Stredic v. Fernald, No. 5:00-CV-0001-BG (N.D. Tex. Mar. 28, 2001) (order of dismissal);

Stredic v. Johnson, No. G-94-63 (S.D. Tex. Mar. 20, 1995) (judgment and order accepting report and

recommendation dated Feb. 22, 1995). Due to these three “strikes” plaintiff may not proceed with

his current action without the prepayment of fees under 28 U.S.C. § 1915(g) unless it appears that

he is subject to imminent danger of serious physical injury.

 

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Plaintiff has filed a document that purports to show that he is subject to imminent “danger

of physical death.” (See Correspondence, doc. 4.) The document consists of numerous grievances

filed with the prison which houses plaintiff. (See id.) While it is difficult to follow the various

grievances, the most recent grievance is dated July 30, 2005, and concerns alleged retaliation and

“unnecessary mistreatment” to injure a disabled individual. Plaintiff also attaches other grievances

from 2005 that concern missing books and confiscation of legal materials from his cell and grievances

from 2003 that concern his medication. 

None of the grievances overcome the three-strikes provision. The grievances are either

irrelevant to the issue of imminent danger, too remote in time to constitute imminent danger, or

arose after petitioner filed the instant action. With respect to the timing of the imminent danger

of serious physical injury for purposes of § 1915(g), the Fifth Circuit Court of Appeals has specifically

held:

The plain language of the statute [] leads us to conclude that a prisoner with three

strikes is entitled to proceed with his action or appeal only if he is in imminent

danger at the time that he seeks to file his suit in district court or seeks to proceed with

his appeal or files a motion to proceed IFP.

Banos v. O’Guin, 144 F.3d 883, 884-85 (5th Cir. 1998) (emphasis added); accord Choyce v.

Dominguez, 160 F.3d 1068, 1070 (5th Cir. 1998) (following Banos). Under Banos, neither the July

2005 grievance nor the 2003 grievances provide a basis for finding plaintiff in imminent danger for

purposes of proceeding with this action. Plaintiff makes no specific allegation of imminent danger

at the time he commenced this action. That he may have experienced some sort of “retaliation” on

July 30, 2005, or experienced problems related to his medication in 2003, does not satisfy the

 

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 This conclusion is consistent with a prior consideration of plaintiff’s allegation of imminent danger. See Stredic v.

Veteran’s Admin., No. 3:05-CV-1193-D (N.D. Tex. filed June 9, 2005). 

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imminent-danger requirement of § 1915(g). Consequently, plaintiff must prepay the requisite filing

fee before this case can proceed.1

III. INVOLUNTARY DISMISSAL

Rule 41(b) of the Federal Rules of Civil Procedure permits a court to dismiss sua sponte an

action for failure to prosecute or follow orders of the court. McCullough v. Lynaugh, 835 F.2d 1126,

1127 (5th Cir. 1988). This authority flows from a court’s inherent power to control its docket, prevent undue delays in the disposition of pending cases, and avoid congested court calendars. Link v.

Wabash R.R. Co., 370 U.S. 626, 629-31 (1962). Plaintiff has failed to comply with the Order of

November 15, 2005, that he pay the filing fee within thirty days. Accordingly, the Court should

dismiss his complaint without prejudice for failure to follow an order of the Court.

IV. RECOMMENDATION

For the foregoing reasons, it is recommended that the Court deny plaintiff’s motion to proceed in forma pauperis and dismiss his complaint without prejudice for failure to comply with an order

of the Court pursuant to Fed. R. Civ. P. 41(b). 

SIGNED this 23rd day of January, 2006. 

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636(b)(1), any

party who desires to object to these findings, conclusions, and recommendation must file and serve

written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made.

The District Court need not consider frivolous, conclusory or general objections. Failure to file

written objections to the proposed findings, conclusions, and recommendation within ten days after

being served with a copy shall bar the aggrieved party from appealing the factual findings and legal

conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds

of plain error. Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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