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IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF TEXAS 

TYLER DIVISION

JAIME COVARRUBIAS #0939535 §

v. § CIVIL ACTION NO. 6:23cv404

ERICK BRANNAN, ET AL. §

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

The Plaintiff Jaime Covarrubias, a prisoner currently confined in the Texas Department of 

Criminal Justice - Correctional Institutions Division, 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 the 

Amended Order for the Adoption of Local Rules for the Assignment of Duties to United States 

Magistrate Judges. The named Defendants are Captain Erick Brannan, Lt. Johnathon Gale, Sgt. 

Awosenya, Sgt. David Sieg, Lt. Crystal Roberts, Lt. Johnathan Hyatt, Captain Dereck Light, 

unknown officer Jane Doe in charge of the count room, Major Traci Shirey, Warden Richard 

Babcock, unit grievance investigator Alicia McElyea, and unit grievance investigator T. Vasillico.

I. The Plaintiff’s Complaint

Plaintiff states that in January of 2021, he was confined at the Michael Unit of TDCJ-CID 

He complains that his safety was placed at risk by a forced cell move by multiple staff at the 

direction of Captain Brannan and Lieutenant Gales, in which “by threats he was placed in a cage 

after a conspiracy to improperly designate plaintiff.” (Docket no. 1, p. 8). He states that he was 

stripped to his boxers and left in a 4 x 3 1⁄2 foot cage during a cold night. Sgt. Awosenya sawhim 

shivering and encouraged the staff to deny Plaintiff all restroom access. Plaintiff states that all of 

the Defendants except for McElyea and Vasillico saw him in the cage for days on end, and the count 

room repeatedly refused to relocate him.

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Plaintiff says that he slept on a cold, filthy floor and had only limited toilet access and no 

hygiene, in full view of everyone. Ten dayslater, he wasreleased to a cell. His Step Two grievance 

waslost or destroyed and Plaintiff assertsthat his grievances were obstructed by deceit. He saysthat 

he lost weight, went without sleep, did not eat for days,suffered mental and emotional anguish, had 

painful bladder and bowel retention, and had a large knot on hisforehead and knee. Plaintiff further 

states that the unit grievance investigators lost or destroyed his Step One and Step two grievances 

concerning Captain Brannan, and they manipulated the grievance process when Plaintiff tried to ask 

about these grievances.

Plaintiff attaches other grievances he filed, of which grievance no.’s 2022064505 and 

2021155129 concerned the loss or delay of earlier grievances, no.’s 2021062726 and 2021068181 

concerned aspects of the incident itself, and no. 2021078164 concerned Plaintiff’s request that the 

surveillance video be retained.

For relief, Plaintiff asks that the use of holding cages be declared unconstitutional, that he 

receive compensatory damagesfor mental and physical pain, and that punitive damages be assessed. 

He also invoked state law claims under the Texas Tort Claims Act.

II. Discussion

Court records show that the Plaintiff Jaime Covarrubias has filed at least three lawsuits or 

appeals which were dismissed as frivolous or for failure to state a claim upon which relief may be 

granted. See Covarrubias v. Irving Police Department, civil action no. 3:00cv1568 (N.D.Tex., 

dismissed as frivolous November 1, 2000); Covarrubias v. Irving Mall Security, civil action no. 

3:00cv1521 (N.D.Tex., dismissed as frivolous November 30, 2000); Covarrubias v. Wallace,612 

F.App’x 701, 2015 U.S. App. LEXIS 7767, 2015 WL 2182899 (5thCir., May 11, 2015)(dismissing

appeal as frivolous).

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

Prison Litigation Reform Act. The statute 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,

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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 pauperisstatute unless he showsthat he wasin 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 (5th Cir. 1998). 

This imminent danger must relate to the allegations of the complaint. Judd v. Federal Elections 

Commission, 311 F.App’x 730, 2009 U.S. App. LEXIS 3464, 2009 WL 423966 (5th Cir., February

20, 2009).

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-Akbarv. 

McKelvie, 239 F.3d 307, 315 (3rd Cir. 2001). In that case, the Third Circuit rejected a claim that 

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

engaged in “continuing harassment, plots to hurt or kill him, and other forms of retaliation,” 

sufficiently alleged imminent danger.

In this case, Plaintiff does not allege imminent danger related to the allegations of the 

complaint; on the contrary, the incidents related in the complaint occurred some three years ago at 

the Michael Unit, and Plaintiff is now at the Hughes Unit. Plaintiff’s allegations thus concern past 

harm rather than imminent danger at the time he filed his lawsuit. As such, they are insufficient to 

invoke the imminent danger exception to §1915(g). Floyd v. Lumpkin, slip op. no. 22-40693, 2023

U.S. App. LEXIS 2994, 2023 WL 1793874 (5th Cir., February 7, 2023) (affirming district court’s 

determination that an allegation of a past assault, after which the assailant was transferred to a 

different unit, was not sufficient to show imminent danger as of the time the complaint was filed);

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Stine v. Federal Bureau of Prisons Designation and Sentence Computation Unit, 571 F.App’x 352, 

2014 U.S. App. LEXIS 10977 (5thCir.,June 12, 2014) (rejecting claimof imminent danger because 

the prisoner “failed to plausibly plead any connection between the alleged imminent danger in 

Colorado and his claims against the BOP defendants in Texas”).

In this case, Plaintiff’s reference to an incident in 2021 at the Michael Unit does not show 

that he was in imminent danger relating to that incident at the Hughes Unit in July of 2023, when 

he signed his complaint. See also McClure v. Livingston, civil action no. 5:12cv56, 2012 U.S. Dist. 

LEXIS 169406, 2012 WL 5987408 (E.D. Tex., November 29, 2012) (incident occurring on Wynne 

Unit of TDCJ did not show imminent danger with regard to claims occurring at the Telford Unit 

months before the complaint was filed); Quick v. Anderson, civil action no. 3:06cv2096, 2006 U.S. 

Dist. LEXIS 89993, 2006 WL 3626968 (N.D. Tex., December 13, 2006) (plaintiff's claims arose in 

the Hunt County Jail but he was transferred to the Stiles Unit of TDCJ prior to filing the lawsuit; 

because he was no longer at the jail, he was not under imminent danger of serious physical injury 

with respect to the claims alleged in the complaint).

Because Plaintiff did not pay the filing fee or show imminent danger of serious physical 

injury, his lawsuit should be dismissed under 28 U.S.C. §1915(g). However, Plaintiff should be 

allowed a reasonable period of time to pay the filing fee and proceed with his lawsuit should he 

choose to do so. See, e.g., Grayer v. Couey, 839 F.App’x 925, 2021 U.S. App. LEXIS 7769, 2021 

WL 1035056 (5th Cir., March 17, 2021) (dismissing appeal as barred by §1915(g) and giving the 

appellant 15 days in which to pay the full appellate filing fee if he wished to reinstate the appeal).

RECOMMENDATION

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

pauperis be denied and that the above-styled civil rights lawsuit be dismissed with prejudice asto 

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

without prejudice to the refiling of this lawsuit upon payment of the full $402.00 filing fee or proof

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of imminent danger related to the allegations of the complaint. It is further recommended that 

should 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 partiesin 

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. See 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).

So ORDERED and SIGNED this 17th day of August, 2023.

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