Barton v. Medical Department, No. 4:2012cv02647 - Document 4 (S.D. Tex. 2012)

Court Description: MEMORANDUM OPINION AND ORDER. 1 Prisoner Civil Rights Complaint is dismissed without prejudice to refiling after payment of the filing fees. (Signed by Judge Sim Lake) Parties notified. (aboyd)

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I N THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION R O N N I E BARTON, T D C J NO. 1 7 9 2 3 4 2 , § § § § Plaintiff, § § § V. CIVIL A C T I O N NO. H-12 HOLIDAY UNIT MEDICAL DEPARTMENT,§ § § Defendant. MEMORANDUM OPINION AND ORDER T e x a s p r i s o n i n m a t e R o n n i e B a r t o n , T D C J No. 1 7 9 2 3 4 2 , h a s f i l e d A t least numerous p r i s o n e r c i v i l r i g h t s s u i t s i n f e d e r a l c o u r t s . t h r e e of t h e s e s u i t s have been dismissed a s f r i v o l o u s . D i e t i c i a n , No. H-12-1069 ( S . D . Tex. J u l y 2 6 , 2 0 1 2 ) ; B a r t o n v . J a i l M e d i c a l D e p a r t m e n t , No. H-12-1674 v. H a r r i s Countv J a i l , Consequently, Barton v . No. ( S . D . Tex. J u n e 2 7 , 2 0 1 2 ) ; B a r t o n H-11-2513 (S.D. Tex. J u l y 8, 2011). B a r t o n i s now b a r r e d f r o m f i l i n g a n y new p r i s o n e r complaints without paying t h e f i l i n g f e e i n advance u n l e s s he i s i n i m m i n e n t d a n g e r o f s e r i o u s p h y s i c a l harm a t t h e t i m e t h e s u i t i s filed. In 28 U.S.C. the § 1915(g). present action Barton department a t t h e TDCJ Holiday Unit requests about t h e food he asserts refuses that the medical t o comply w i t h h i s i s provided a t t h e prison. Barton a l l e g e s t h a t h e had been p r e s c r i b e d a s p e c i a l d i e t t r a y d e s p i t e h i s lack of consent. H e c o m p l a i n s t h a t h e h a s made n u m e r o u s r e q u e s t s to the department seeking removal of the diet designation. He contends that the medical department refuses to listen to his complaints and that the personnel are generally non-responsive. However, Barton does not cite any physical ailment or injury related to his diet. Barton filed a similar lawsuit against the dietician at the Harris County Jail. No. H-12-1069. Barton v. Dietician, The court dismissed the complaint as frivolous after finding that although Barton complained of occasionally being given food items that upset his digestive system, he was also served food that he could eat and that satisfied his nutritional requirements. I . (Docket Entry No. 7). The court concluded that d the jail dietician was not deliberately indifferent to Bartonfs basic needs because she did provide him a special diet. I .at 6, d citinq Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995); Mendoza v. Lvnaush, 989 F.2d 191, 193-95 (5th Cir. 1993). Moreover, Barton failed to indicate any lasting effects from the occasional food that did not suit him. I . at 7. d Like the pleadings filed in No. H-12-1069, Bartonfs pending complaint fails to show that he is in any immediate danger of serious physical harm. Therefore, this action will be dismissed because Barton's allegations do not warrant an exception to the three strikes rule of section 1915 (g). Chovce v. Dominquez, 160 F.3d 1068, 1071 (5th Cir. 1998); Banos v. O'Guin, 144 F.3d 883, 884 (5th Cir. 1998). Conclusion and Order The court ORDERS the following: 1. The prisoner civil rights complaint (Docket Entry No. I), filed by Ronnie Barton, TDCJ No. 1792342, is DISMISSED without prejudice to refiling after payment of the filing fees. 28 U.S.C. § 1915(g). 2. The Clerk is directed to provide a copy of this Memorandum Opinion and Order to the parties; the TDCJ - Office of the General Counsel, P.O. Box 13084, Austin, Texas 78711, Fax Number 512-9362159; the TDCJ-ID Inmate Trust Fund, P.O. Box 629, Huntsville, Texas 77342-0629, Fax Number 936-4374793; and the Pro Se Clerk for the United States District Court for the Eastern District of Texas, Tyler Division, 211 West Ferguson, Tyler, Texas 75702. SIGNED at Houston, Texas, on this 16th day of October, 2012. - SIM LAKE UNITED STATES DISTRICT JUDGE

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