IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

__________________________________________

HERBERT HINES, PRO SE, §

TDCJ-CID #658911, §

§

Plaintiff, §

§

v. § 2:05-CV-0233

§

STATE OF TEXAS; CHAD A. LANDRUM, §

DANNY R. HEAD; RICK PERRY; §

GREG ABBOTT; PAMPA, TEXAS; §

MAYOR OF PAMPA, TEXAS; §

CHIEF OF POLICE - PAMPA, TEXAS; §

GRAY COUNTY, TEXAS; §

DON COPELAND; §

TDCJ AND ITS MEMBERS; §

TDCJ-ID AND ITS GOVERNING BODIES; §

TDCJ-ID JORDAN UNIT; §

GOVERNING BODIES OF JORDAN UNIT; §

SUBSTITUTION OF PARTIES; §

JAMES L. DANIELS; ILA E. GRIFFIN; §

GLEN D. STOUDER; F. HOPE; §

MARY ANN K. LAMB; TINA R. ANDERSON; §

D.F. FONDREN; J.L. STILES; C. CAIN; §

S.R. WHITE; W. BRYAN; L. REYNELL; §

J.M. WESTBROOK; B.J. WINBORNE; §

L.E. PORTER; LUWANA RICHARDSON; §

DEANN BIVINS; BRANDON KIDD; §

CHARLES P. KEY; ARMANDO OROZCO; §

A. HAYDEN; J.V. PARKS; J.L. SYFRETT; §

LESLIE C. HICKS; LLOYD SIMMS; §

TIMOTHY P. MAXEY; BUDDY G. PLUNK; §

WILLIAM F. GRAY; JOHN W. ALLEN; §

W. SEALES; D. HILL; DAVID B. TICE; §

TECK A. BECK; G.L. THOMPSON; §

ROBERT H. BRICKEY; TANAY L. PIODVA; §

RAVEN BYARS; JANICE BROWN; §

MARGO E. STANLEY; S.D. McALPINE; §

JOE N. VAUGHAN; C. SANCHEZ; §

B. BAYER; S. CHAMACHER; §

KARL D. PARKS; L. SHORT; §

FLOYD F. BAXTER; JESSE E. CASTILLO; §

R.L. JONAS; JEANNA LANDRUM; §

J.C. McALVINE; KEVIN L. ANORS; §

M.G. SMITH; R. FILLION; GLORIA DAY; §

JOYCE VANDERBURG; ADAM FRELIX; §

 

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JEREMY LEAL; and JO K. STRANCE; §

§

Defendants. §

ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS,

MEMORANDUM OPINION AND ORDER OF DISMISSAL

Plaintiff HERBERT HINES, acting pro se and while a prisoner incarcerated in the Texas

Department of Criminal Justice, Correctional Institutions Division, has filed suit pursuant to Title 42,

United States Code, Section 1983 complaining against the above-named defendants and requesting

permission to proceed in forma pauperis.

Under the “three strikes” provision of the Prison Litigation Reform Act, a prisoner who has

had three prior civil actions or appeals, brought during detention, dismissed as frivolous, malicious, or

for failure to state a claim, is barred from further proceeding in forma pauperis in such actions, unless

the case fits into the narrow exception enumerated in Title 28, United States Code, section 1915(g). A

prisoner who has sustained three dismissals qualifying under the “three strikes” provision may still

pursue any claim, “but he or she must do so without the aid of the i.f.p. procedures.” Adepegba v.

Hammons, 103 F.3d 383 (5th Cir. 1996).

The Court notes that plaintiff HINES has sustained at least three dismissals which fulfill the

"three strikes" provision of the PLRA: 9:98-CV-191 (USDC EDTX Lufkin Division) was dismissed

March 26, 2001 as frivolous and for failure to state a claim on which relief can be granted; 9:02-CV0311 (USDC EDTX Lufkin Division) was dismissed for failure to exhaust administrative remedies

and his appeal of that dismissal, cause no. 03-40195, was dismissed as frivolous by the United States

Court of Appeals for the Fifth Circuit on September 29, 2003; and 4:03-CV-2027 (USDC SDTX

Houston Division) was dismissed as frivolous on April 30, 2004.

Pursuant to Title 28, United States Code, section 1915(g), the Court FINDS plaintiff

HERBERT HINES may not proceed in forma pauperis in any further new filings or appeals filed

 

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while a prisoner unless grounds are argued in a motion for leave which fall within the limited

exception enumerated in Title 28, United States Code, section 1915 (g). Even if the instant cause were

accompanied by the necessary motion, the grounds presented in the instant suit do not fall within the

statutory exception. Plaintiff has alleged no fact fulfilling the statutory exception as construed by the

Fifth Circuit. Banos v. O’Guin, 144 F.3d 883, 885 (5th Cir. 1998). 

CONCLUSION

For the reasons set forth above, plaintiff’s motion to proceed in forma pauperis is DENIED.

The instant cause is DISMISSED WITHOUT PREJUDICE TO REFILING WITH

PREPAYMENT OF THE FILING FEE.

LET JUDGMENT BE ENTERED ACCORDINGLY.

All pending motions are DENIED.

IT IS SO ORDERED.

ENTERED this 29th day of August, 2005.

/s/ Mary Lou Robinson 

MARY LOU ROBINSON

UNITED STATES DISTRICT JUDGE

 

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