Memorandum Opinion and Order – Page 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JOE HENRY MACK, §

§

Plaintiff, §

§

v. § Civil Action No. 3:05-CV-2200-L

§

TEXAS DEPARTMENT OF, §

CRIMINAL JUSTICE, et al., §

§

Defendants.

MEMORANDUM OPINION AND ORDER

This is a pro se civil rights case brought by Plaintiff Joe Henry Mack (“Plaintiff” or “Mack”).

Mack filed this action while an inmate of the Dallas County Jail against the Texas Department of

Criminal Justice Institutional Division (“TDCJ-ID), the Texas Board of Pardons and Paroles, and

various state parole officers. He contends that he cannot receive adequate medical care at the

facility to which the parole board sent him; and that his parole was wrongfully revoked after he

failed a drug test for taking prescription medications. 

On November 8, 2005, Mack filed an application to proceed in forma pauperis. Pursuant

to 28 U.S.C. § 636(b), and an order of the court in implementation thereof, this action was referred

to the United States Magistrate Judge for proposed findings and recommendation. On December

13, 2005, the Findings and Recommendation of the United States Magistrate Judge (“Report”) were

filed. Mack filed Plaintiff’s Objections to Findings and Recommendations of the United States

Magistrate Judge (“Objections”) on February 22, 2006. Mack states in his Objections that he was

released from jail on January 5, 2006.

 

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Pursuant to the Prison Litigation Reform Act (“PLRA”), a prisoner may not proceed in forma

pauperis if he has, on three prior occasions during detention, had an action or appeal dismissed as

frivolous, malicious, or for failing to state a claim. 28 U.S.C. § 1915(g). Section 1915(g) contains

an exception that allows prisoners, whose privileges have been revoked, to proceed in forma

pauperis in cases involving imminent danger of serious physical injury. Id.

The magistrate judge determined that Plaintiff should not be allowed to proceed in forma

pauperis, as he has filed at least three prior civil actions that were dismissed as frivolous, and he is

not under imminent danger of serious physical injury. The magistrate judge recommends that

Plaintiff’s application to proceed in forma pauperis be denied, and Plaintiff be ordered to pay the

$250 statutory filing fee within 30 days after the findings of the magistrate judge are adopted by the

district judge.

In his Objections, Plaintiff contends that, as he is no longer incarcerated, he is not subject

to the Prison Litigation Reform Act (“PLRA”), and thus can proceed in forma pauperis regardless

of how many times he has previously proceeded in forma pauperis as an inmate. The court

disagrees. Section 1915(g) specifically prohibits “a prisoner” from bringing a civil action if he has,

while incarcerated or detained, brought an action that was dismissed because it was frivolous,

malicious, or failed to state a claim upon which relief could be granted. Id. “Prisoner” is defined

as “any person incarcerated or detained in any facility who is accused of, convicted of, sentenced

for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole,

probation, pretrial release, or diversionary program.” 28 U.S.C. § 1915(h). The clear language of

subsections (g) and (h) refers to the time when the action is filed. See Banos v. O’Guin, 144 F.3d

 

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Memorandum Opinion and Order – Page 3

883, 885 (5th Cir. 1998). Although Plaintiff may not be incarcerated at this time, he was a prisoner

at the time he filed his action. Plaintiff is therefore subject to the prohibitions of the PLRA. 

Regarding whether Plaintiff faces imminent danger of serious physical injury that would

allow him to proceed in forma pauperis in spite of the dismissal of his three prior lawsuits, the court

determines that Plaintiff is not entitled to proceed in forma pauperis under this exception. Plaintiff

contends in his complaint that while incarcerated in TDCJ-ID, Defendants denied him proper

medical care that resulted in his contraction of Hepatitis C Virus (“HCV”). After his release from

TDCJ-ID, Plaintiff’s parole was revoked and he was incarcerated in the Dallas County Jail. Plaintiff

contends that as a result of the revocation and subsequent confinement in the county jail, Defendants

are continuing to interfere with him receiving adequate medical care. Plaintiff filed this action while

incarcerated at the Dallas County Jail. In his Objections, Plaintiff states that he is not challenging

his medical care and treatment while in the county jail; rather he complains of Defendants injuring

him while he was in custody, denying him adequate medical care and treatment for years, and

sentencing him to punishment that amounts to the “death penalty” as he is terminally ill. Objections

at 2-4. The imminent danger must exist at the time the complaint was filed. Banos, 144 F.3d at 885.

As Plaintiff is not challenging his medical care and treatment in the county jail, where he was

incarcerated at the time he filed this action, he was not facing imminent danger of serious physical

injury that would allow him to proceed in forma pauperis in spite of the dismissal of his three prior

lawsuits. 

Having reviewed the pleadings, file and record in this case, the findings of the magistrate

judge, and having considered Plaintiff’s objections thereto, the court determines that the findings

of the magistrate judge are correct. They are therefore accepted as those of the court. Plaintiff’s

 

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Memorandum Opinion and Order – Page 4

Objections are overruled. Accordingly, Plaintiff’s application to proceed in forma pauperi is

denied, and Plaintiff is directed to pay the $250 statutory filing fee by May 4, 2006.

It is so ordered this 4th day of April, 2006.

_________________________________

Sam A. Lindsay

United States District Judge

 

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