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IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF TEXAS 

TEXARKANA DIVISION

JOHN VANOUS #02084056 §

v. § CIVIL ACTION NO. 5:23cv42

SGT. DARIUS KING, ET AL. §

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

The Plaintiff John Vanous, a prisoner currently confined in the Texas Department of 

Criminal Justice, Correctional Institutions Division proceeding pro se, filed this civil rights lawsuit 

under 42 U.S.C. §1983 complaining of alleged deprivations of his constitutional rights. The lawsuit 

was referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) 

and (3) and Local Rule CV-72 of the Local Rules of Court for the Eastern District of Texas. The 

named Defendants are Sgt. Darius King, Sgt. Holmes, and Lt. Hawkins, TDCJ officials located at 

the Telford Unit.

I. The Plaintiff’s Complaint

Plaintiff’s amended complaint is the operative pleading in the lawsuit. Dkt. No. 6. In his 

amended complaint, Plaintiff states that he is a documented transgender inmate diagnosed with 

gender dysphoria. On October 20, 2022, he states that he was subjected to excessive use of force 

by staff, during which he was strapped to a gurney on his stomach. According to Plaintiff, the 

Defendants cut off his clothing and took him to building twelve completely naked. He complains 

that they verbally abused him with expletives of a sexual nature and derogatory terms to describe 

his sexual orientation. As a result, Plaintiff says that he was viewed naked by other staff members

and surveillance cameras.

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II. Discussion

Court records show that the Plaintiff John Vanous has filed at least three previous lawsuits 

or appeals which were dismissed as frivolous or for failure to state a claim upon which reliefmay 

be granted. See Vanous v. Warden Akwitti, et al., civil action no. 6:18cv243 (W.D.Tex., Jan. 18, 

2019) (dismissed for failure to state a claim and as malicious); Vanous v. Captain John Ritter, et al., 

civil action no. 6:18cv296 (W.D. Tex., Oct. 29, 2018)(dismissed forfailure to state a claim); Vanous

v. C.O. Robert C. Martinez, civil action no. 6:19cv14 (W.D. Tex., Aug. 16, 2019 (dismissed for 

failure to state a claim); Vanous v. Cordle, et al., civil action no. 1:22cv10, 2022 WL 875595 (E.D.

Tex., March 23, 2022) (dismissing case as barred by the three-strikes provision of 28 U.S.C.§ 

1915(g)).

28 U.S.C. §1915(g), added by Act of Congress on April 26, 1996, as part of the Prison 

Litigation Reform Act, provides that:

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

or proceeding under thissection if the prisoner has, on three 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 ground that it is frivolous, malicious, 

or failsto state a claim upon which relief may be granted, unlessthe prisoner is under 

imminent danger of serious physical injury.

Because Plaintiff has three strikes and thus falls under the Act, he cannot proceed under the 

in forma pauperis statute unless he shows that he was in imminent danger ofserious physical injury 

as of the date of the filing of the lawsuit. See Baños v. O'Guin, 144 F.3d 883, 885 (5thCir. 1998). 

In order to meet the imminent danger requirement of §1915(g), the threat must be “real and 

proximate.” 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 that the complaint or notice of 

appeal is filed, and the exception refers to “a genuine emergency” where “time is pressing.” 

Heimerman v. Litscher, 337 F.3d 781, 782 (7th Cir. 2003). In passing the statute,Congressintended 

a safety valve to prevent impending harms, not those which had already occurred. Abdul-Akbar v. 

McKelvie, 239 F.3d 307, 315 (3rd Cir. 2001). In Abdul-Akbar v. McKelvie, the Third Circuit 

rejected a claim that allegations of having been sprayed with pepper spray, combined with a claim 

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that prison officials engaged in “continuing harassment, plots to hurt or kill him, and other forms 

of retaliation,” sufficiently alleged imminent danger.

This Court and others have held that the prisoner must allege specific facts showing he is 

under imminent danger of serious physical injury at the time of the filing of the lawsuit; general 

allegations not grounded in specific facts indicating serious physical injury is imminent are not 

sufficient to invoke the exception to §1915(g). Fuller v. Wilcox, 288 F.App’x 509, 2008 U.S. App. 

LEXIS 16581, 2008 WL 2961388 (10th Cir., August 4, 2008), (citing Martin v. Shelton, 319 F.3d 

1048, 1050 (8th Cir. 2003)); Hyder v. Obama, civil action no. 5:11cv26, 2011 U.S. Dist. LEXIS 

31300, 2011 WL 1113496 (E.D. Tex., March 11, 2011, report adopted at 2011 U.S. Dist. LEXIS

31288, 2011 WL 1100126 (E.D. Tex., March 24, 2011).

Plaintiff does not allege, much lessshow, that he wasin imminent danger ofserious physical 

injury at the time he signed his original complaint on March 23, 2023, some five months after the 

incident complained of took place. While he does not specifically allege that he suffered any harm 

as a result of the incident, any such harm would have been past at the time the lawsuit was filed, 

which does not come within the parameters of §1915(g). Abdul-Akbar, 239 F.3d at 315; see also 

Newman v. Harris, 770 F.App’x 216, 217 (5th Cir. 2019) (allegation that prisoner was physically 

harmed in the past is insufficient to overcome §1915(g), (citing Baños, 144 F.3d at 884-85)).

Because Plaintiff did not pay the full filing fee and failed to show imminent danger of 

physical injury as of the date he filed the lawsuit, he is barred from proceeding in forma pauperis; 

however, he should be allowed a reasonable period of time in which to pay the filing fee and proceed 

with hislawsuitshould he choose to do so. Plaintiffshould note that payment of the filing fee would 

not affect a screening analysis for frivolousness or failure to state a claim under 28 U.S.C. §1915A.

RECOMMENDATION

It is accordingly recommended that the Plaintiff’s application for leave to proceed in forma 

pauperis(Dkt. No. 2) be denied and the above-styled civilrightslawsuit be dismissed with prejudice

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as to the refiling of another in forma pauperis lawsuit raising the same claims as herein presented, 

but without prejudice to the refiling of this lawsuit without seeking in forma pauperis status and 

upon payment of the full $405.00 filing fee. It is further recommended that should the Plaintiff pay 

the full filing fee within 15 days after the date of entry of dismissal, he be allowed to proceed in this 

lawsuit as though the full fee had been paid from the outset.

A copy of these findings, conclusions and recommendationsshall be served on all parties in 

the manner provided by law. Any party who objects to any part of these findings, conclusions, and 

recommendationsmustfile specificwritten objectionswithin 14 days after being served with a copy.

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 proposed findings, conclusions, and recommendation where the disputed determination is 

found. An objection which merely incorporates by reference or refers to the briefing before the 

Magistrate Judge is not specific, and the district court need not consider frivolous, conclusive, or 

general objections. Battle v. United States Parole Commission, 834 F.2d 419, 421 (5th Cir. 1987).

Failure to file specific written objections will bar the objecting party from appealing the 

factual findings and legal conclusions of the Magistrate Judge which are accepted and adopted by 

the district court except upon grounds of plain error. Duarte v. City of Lewisville, 858 F.3d 348, 352 

(5th Cir. 2017).

.

____________________________________

J. Boone Baxter

UNITED STATES MAGISTRATE JUDGE

SIGNED this the 26th day of January, 2024.

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