Thomas v. T.D.C.J., No. 4:2014cv01644 - Document 4 (S.D. Tex. 2014)
Court Description: MEMORANDUM OPINION AND ORDER dismissing without prejudice 1 Complaint. Petitioner is warned that he may be sanctioned if he continues to file pleadings that are duplicative or are barred under 28 USC 1915(g) without submitting the necessary fee. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
Download PDF
<![CDATA[
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION DESTRY E. THOMAS, TDCJ NO. 1257786, § § § § § § § § § § Plaintiff, v. T.D.C.J. , Defendant. CIVIL ACTION NO. H-14-1644 MEMORANDUM OPINION .AND ORDER The plaintiff, Destry E. Thomas (TDCJ #1257786), an inmate of the Estelle Unit of the Texas Department of Criminal Justice Correctional Institutions Division (TDCJ), has filed a pro se civil rights complaint under 42 U.S.C. TDCJ officials for various § 1983 against an assortment of perceived civil rights violations. Thomas has not paid the filing fee and presumably seeks permission to proceed in forma pauperis. Thomas has a history of filing numerous frivolous and repetitive pleadings and is barred under the three-strikes provision of the Prison Litigation Reform Act (PLRA) ~, See, After Thomas v. TDCJ, reviewing all of Civil No. H-14-1643 the pleadings and (S.D. Tex. 2014) Thomas's litigation history, the court will dismiss this action. Under the three strikes provision of the PLRA, a prisoner is not allowed to bring a civil action in forma pauperis in federal court if, while incarcerated, three or more of his civil actions or appeals have been dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted. § 1915(g) An i 28 U. S. C. Adepegba v. Hammons, 103 F.3d 383, 385 (5th Cir. 1996). inmate may circumvent § 1915 (g) 's bar only if he presents allegations showing that he is in imminent danger of physical harm at the time that he files his suit. Banos v. O'Guin, 144 F.3d 883, 884 (5th Cir. 1998). Thomas has been a prolific and vexatious pro se litigator in the federal district courts of Texas. The Public Access to Court Electronic Records ("PACER") website reveals that Thomas has filed more than sixty-five federal prisoner civil rights complaints and habeas petitions since 1995. Courts have dismissed as frivolous at Thomas v. least four of his prisoner civil rights complaints. Castillo, Civil No. H-09-3871 (S.D. Tex. 2009) i Mooneyham, Civil No. 7:07cv137 (N.D. Tex. 2007) Civil No. No. 5:00cv835 5:97cv881 (W.D. (W.D. Tex. Tex. 2000) 1997). i v. Thomas v. Bravo, i Thomas In addition, Thomas v. Bravo, Civil the United States Court of Appeals for the Fifth Circuit dismissed one of Thomas's appeals as frivolous. Thomas v. McFarland, Appeal No. 02-21267 (5th Cir. 2003). In the present action Thomas complains that he was denied materials from the library on June 13, 2012. He also alleges that the law librarian subjected him to verbal harassment and threats when he refused to return several folders that were in his cell. Thomas claims that her actions were retaliatory. -2- Thomas further complains that he has been the victim of extortion and has been denied food. He also alleges that a large number of TDCJ staff members sexually assaulted him during mid-November of 2013. The facts asserted in this lawsuit are similar to the many lawsuits filed by Thomas over the years that allege improbable if not bazaar scenarios. In one prior action Thomas alleged that he l was sexually assaulted by three wardens I lieutenants correctional three I counsel substitute librarian l sergeants I a case manager that a captain l two l officers a l three law library officers I three registered nurses l and a physician's assistant. 2013 ) twenty a major a I a licensed vocational nurse l Thomas v. Doe l H-12-3632 l (S.D. Tex. The district court dismissed the complaint after finding there was no logical serious consideration. S. Ct. 1728 1 appropriate Id. 1733 (1992) 1 when the basis 1 for giving Thomas s I citing I Hernandez I 112 ("a finding of factual frivolousness is facts alleged irrational or wholly incredible . Postal Servo Denton v. complaint 754 F.2d 641 1 rise to level of the ."); Prewitt v. United States 641 (5th Cir. 1985) gate of the realms of fantasy. the (" [W]e stand at the We decline to enter in."). Thomas raised similar claims of rape and sexual assaults in previous suits filed in the Southern District of Texas that were summarily dismissed with a finding that there was no indication that he was in any immediate danger. See Thomas v. (S.D. Tex. 2011); Thomas v. Gibson Thomas v. Gibson l No. l H-11-1638 -3- Jackson l No. H-11-2725 No. H-11-1788 (S.D. Tex. 2011); (S.D. Tex. 2011); Thomas v. Sweetin, No. H-11-1417 (S.D. Tex. 2011). the Southern District reveal that Court records outside of Thomas has a practice of attempting to prosecute claims that have already been dismissed. See, ~, Thomas v. Bravo, Civil No. 5:00cv835. It is apparent that the present action is another attempt to pursue a baseless claim that has been previously rejected because it is a product of fantasies, not facts. A close inspection of Thomas's pleadings reveals that his actual complaint, there if a is plausible is one, his dissatisfaction with the library services at the Estelle Unit. Regardless of whether Thomas has been able to have access to the prison library, there is nothing in his complaint that supports a finding that he was in immediate danger when he filed it. v. Livingston, 356 F. App'x 715, 716 (5th Cir. 2009) v. McKelvie, 239 F.3d 307, 315 (3d Cir. 2001) i See Bell Abdul-Akbar ('''Imminent' dangers are those dangers which are about to occur at any moment or are impending. ") DICTIONARY citing 611 WEBSTER'S (1984). II NEW Consequently, RIVERSIDE his history UNIVERSITY of filing frivolous complaints about prison conditions bars him from filing another such complaint without paying the entire filing fee advance. 42 U.S.C. § in 1915(g). Thomas's history of filing complaints that are both frivolous and repetitive warrants an admonishment from the court that he cannot continue to waste judicial resources with claims which serve no purpose other than to harass -4- the court system. See Day v. Allstate Ins. Co., 788 F.2d 1110, 1114 (5th Cir. 1986). Thomas is that he may be SANCTIONED if he files another civil ADMONISHED rights complaint that has no basis in law. Although Thomas has not shown that he is in any immediate danger, the court is concerned that he may need closer analysis by trained personnel. The court is aware that TDCJ has limited resources to treat inmates and that some discretion is necessary. The court is also mindful that its duty to protect prisoners' constitutional rights does not give it the authority to manage the day-to-day functions of the custodians who are responsible for the inmates' welfare. Cir. 1982). See Ruiz v. Estelle, 679 F.2d 1115, 1126 (5th Therefore, the court INSTRUCTS the Clerk to send a copy of this Memorandum Opinion and Order to the senior warden at the Estelle Unit, the director of TDCJ health services, TDCJ General Counsel for advisory purposes only. Conclusion and Order The court ORDERS as follows: 1. Plaintiff's complaint (Docket Entry No.1) is DISMISSED without prejudice under 28 U. S. C. § 1915 (g) . 2. Destry E. Thomas (TDCJ #1257786) is WARNED that he may be sanctioned if he continues to file pleadings that are duplicative or are barred under 28 U. S. C. § 1915 (g) without submitting the necessary fee. 3. The Clerk will provide copies of this Memorandum Opinion and Order by regular mail -5- and the or by electronic means if available to the parties; the TDCJ - Office of the General Counsel, P.O. Box 13084, Capitol Station, Austin, TX 78711, Fax No. 512-936-2159; the Clerk of the United States District Court for the Eastern District of Texas, Tyler Division, 211 West Ferguson, Tyler, Texas 75702, Attention: Manager of the Three-Strikes List; Senior Warden Tracy Bailey, TDCJ Estelle Unit, 264 F.M 3478, Huntsville, Texas 77320-3320; to Dr. Lannette Linthicum, Director of the TDCJ Health Services Division, 3009-A Highway 30 West, Huntsville, Texas 77430-0769; and to the TDCJ Office of the General Counsel, 209 West 14th Street, Suite 500, Austin, TX 78711. SIGNED at Houston, Texas, on this the 16th day of July, 2014. r SIM LAKE UNITED STATES DISTRICT JUDGE -6-
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
