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IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF TEXAS 

TYLER DIVISION 

THOMAS H. CLAY, 

 Plaintiff, 

v. 

TDCJ-CID, et al., 

 Defendants. 

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Case No. 6:23-cv-615-JDK-KNM 

ORDER ADOPTING REPORT AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE 

Plaintiff Thomas H. Clay, a Texas Department of Criminal Justice inmate 

proceeding pro se, brings this civil rights lawsuit under 42 U.S.C. § 1983. The case 

was referred to United States Magistrate Judge K. Nicole Mitchell pursuant to 28 

U.S.C. § 636. 

On December 26, 2023, Judge Mitchell issued a Report and Recommendation 

finding that Plaintiff has accumulated at least three strikes under the Prison 

Litigation Reform Act and recommending that the Court deny Plaintiff’s motion to 

proceed in forma pauperis and dismiss this case with prejudice as to the refiling of 

another in forma pauperis lawsuit raising the same claims but without prejudice to 

the refiling of this lawsuit upon satisfaction of outstanding sanctions against him and 

payment of the full filing fee. Docket No. 4. Plaintiff filed objections. Docket No. 8. 

Where a party timely objects to the Report and Recommendation, the Court 

reviews the objected-to findings and conclusions of the Magistrate Judge de novo. 28 

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U.S.C. § 636(b)(1). In conducting a de novo review, the Court examines the entire 

record and makes an independent assessment under the law. Douglass v. United 

Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc), superseded on other 

grounds by statute, 28 U.S.C. § 636(b)(1) (extending the time to file objections from 

ten to fourteen days). 

In his objections, Plaintiff argues that he is in “real and ongoing imminent 

danger”—specifically, an alleged MRSA infection. Docket No. 8. But the Report 

already considered and rejected these arguments. Docket No. 4 at 5. As the Report 

explains, because Plaintiff is not in imminent danger as to the allegations of the 

present complaint, his claim does not meet the requirements of 28 U.S.C. § 1915(g).1 

Id. Plaintiff also challenges the § 1915(g) bar and the previous sanctions other courts 

have imposed upon him. Docket No. 8. But binding Fifth Circuit precedent supports 

these requirements. Plaintiff’s citations to decisions from the Second and Eleventh 

Circuits are therefore unavailing. 

Next, Plaintiff appears to argue that Eastern District of Texas General 

Order 94-6’s requirement that this Court honor sanctions imposed by other district 

courts somehow nullifies the imminent danger clause of § 1915(g) and creates a 

“conflict of law” under the Rules Enabling Act, 28 U.S.C. § 2072. Plaintiff further 

complains that the Court has imposed “a new rule of law” by imposing a blanket 

denial of access to filing in federal court as to unpaid filing fees and sanctions, even 

under the imminent danger clause. As stated above, the Fifth Circuit has affirmed 

1 The Court offers no opinion on any imminent danger claim Plaintiff may have concerning his current 

confinement at the Estelle Unit. 

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that Plaintiff has three strikes under § 1915(g) and has imposed its own sanctions 

upon Plaintiff. The Fifth Circuit has also upheld the practice of honoring sanctions 

imposed by other courts. Balawajder v. Scott, 160 F.3d 1066, 1068 (5th Cir. 1998). 

Thus, no “new rule of law” was imposed by this Court in honoring the sanction 

imposed by the Southern District. 

Having conducted a de novo review of the record in this case and the 

Magistrate Judge’s Report, the Court has determined that the Report of the 

Magistrate Judge is correct, and Plaintiff’s objections are without merit. Accordingly, 

the Court OVERRULES Plaintiff’s objections (Docket No. 8) and ADOPTS the 

Report of the Magistrate Judge (Docket No. 4) as the opinion of the District Court. 

Plaintiff’s claims are DISMISSED with prejudice as to the refiling of another in 

forma pauperis lawsuit raising the same claims but without prejudice to the refiling 

of this lawsuit upon the satisfaction of three conditions: (1) proof of satisfaction of the 

Southern District of Texas’s $100.00 sanction; (2) receipt of written permission to file 

a new lawsuit or proof of payment of the Fifth Circuit’s $100.00 sanction; and (3) 

payment of the full filing fee in the newly refiled case or a showing that Plaintiff is in 

imminent danger of serious physical injury relating to the allegations of the 

complaint at the time of the filing of the new complaint. 

So ORDERED and SIGNED this day of

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JEREMY D. KERNODLE

UNITED STATES DISTRICT JUDGE 22nd November, 2024.

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