McLure vs. Livingston et al, No. 4:2014cv01754 - Document 5 (S.D. Tex. 2014)
Court Description: MEMORANDUM OPINION AND ORDER dismissing with prejudice 1 Complaint, denying 2 MOTION for Temporary Restraining Order. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION ROBERT TROY McCLURE, TDCJ NO. 1420457, § § § Plaintiff, § § § § § § § v. BRAD LIVINGSTON, et al., Defendants. CIVIL ACTION NO. H-14-1754 MEMORANDUM OPINION AND ORDER Robert Troy McClure, a TDCJ inmate with a history of frivolous litigation, has filed a civil rights complaint alleging that he was subjected to living in a heated cell incarcerated at the TDCJ Ferguson Unit. without a fan McClure filed an identical suit that was dismissed as barred pursuant to 28 U.S.C. McClure v. Livingston, No. while H-14-1749 (S.D. Tex. § 1915(g). 2014). In dismissing the case the district court found that McClure was not in imminent danger, § which would entitle him to an exception to 1915(g) 's three-strikes rule. McClure remedies. had failed to See 42 U.S.C. The current exhaust § complaint Id. the The court also found that available administrative 1997e. is McClure's second filing alleging heated cell conditions at the Ferguson Unit. Maintenance of the instant action resources. 1990). would be redundant and a waste of judicial See Mayfield v. Collins, 918 F.2d 560, 561-62 (5th Cir. A prisoner's civil rights suit is malicious as a matter of law and is subject to dismissal where the suit raises claims that are duplicative of a prior suit filed by the same prisoner in federal court. Cir. 1993). WL 2924920, See Pittman v. Moore, See *1 also (5th Cir. Blakely v. June 30, 980 F.2d 994, Evans, 2014), - F. 994-95 App'x -, citing Pittman. (5th 2014 This prisoner action will be dismissed as malicious under 28 U.S.C. § 1915 (e) . Wilson v. Lynaugh, 878 F.2d 846 complaints may be dismissed under relitigate claims which have § (5th Cir. 1989) 1915(d) already (IFP if they attempt to been submitted by the plaintiff and rejected by the courts), citing Bailey v. Johnson, 846 F.2d 1019 (5th Cir. 1988). Conclusion Accordingly, based on the foregoing, the court ORDERS follows: 1. The complaint ("Emergency" Motion to Proceed I.F.P. Under imminent danger exception of § 1915(g), Docket Entry No.1) is DISMISSED WITH PREJUDICE as malicious. 28 U.S.C. § 1915(e). 2. The "Emergency" Order to Show Cause for an Preliminary Injunction & a Temporary Restraining Order (Docket Entry No.2) is DENIED. 3. The Clerk is directed to provide a copy of this Memorandum Opinion and Order to the parties; the -2- as TDCJ Office of the General Counsel, P.O. Box 13084, Austin, Texas 78711, Fax Number 512-9362159; and 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. SIGNED at Houston, Texas, on this the 17th day of July, 2014. UNITED STATES DISTRICT JUDGE -3-
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