Wafer v. Corsicana Police Department et al, No. 3:2009cv01680 - Document 3 (N.D. Tex. 2009)
Court Description: FINDINGS AND RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE re 2 MOTION for Leave to Proceed in forma pauperis with certificate of trust account filed by Leonard C Wafer. Plaintiff's application to proceed in forma pauperis should be denied. Plaintiff should be ordered to pay the $350.00 statutory filing fee within 20 days after this recommendation is adopted by the district judge. If he fails to do so, the case should be dismissed without further notice. (See Order) (Ordered by Magistrate Judge Jeff Kaplan on 9/14/2009) (skt)
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Wafer v. Corsicana Police Department et al Doc. 3 IN THE LTNITED STATESDISTRICTCOURT NORTHERNDISTRICTOF TEXAS DALLAS DIVISION LEONARD C. WAFER Plaintiff, VS . CORSICANAPOLICEDEPARTMENT, ET AL. Defendants. $ $ $ $ $ $ $ $ $ $ NO.3-09-CV-1680-B FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE This case has been referred to the United States magistratejudge for initial screening Thefindings pursuantto23U.S.C.$636(b)andastandingorderofreferencefromthedistrictcourt. and recommendationof the magistratejudge are as follow: I. This is a pro se civil rights actionbrought by LeonardC. Wafer, a Texasprisoner,against the Corsicana Police Department, a Corsicanapolice detective, and the Navarro County District Attorney. On September9, 2}}g,plaintiff tendereda five-page complaint to the district clerk and filed an application to proceed in forma pauperis. After reviewing the pleadings, the court he determinesthat plaintiff should not be allowed to proceedin forma pauperis because has frled at that were dismissedasfrivolous or for failure to state leastthreeprior civil actionswhile incarcerated a claim, and he is not "under imminent dangerof seriousphysical injury." il. Although his complaint is difficult to decipher, plaintiff appearsto allege that defendants gave drugs to his wife, a mentally incompetentcrack addict, and usedher as an informant in a sting Dockets.Justia.com unspecified damages and operation that resulted his imprisonment.By this suit,plaintiff seeks in injunctive relief.t A. A prisoner may not proceed in forma pauperis if, while incarceratedor detained in any facility, he has filed three or more civil actions or appealsin federal court that were dismissedas frivolous, malicious,or for failure to statea claim. See28 U.S.C. $ 1915(g). The only exception to this "three strikes" bar is when the prisoner is "under imminent dangerof seriousphysical injury." Id. In order to meet the "imminent danger" requirementof section 1915(9),the "threat or prison condition [must be] real and proxim ate." Ciarpaglini v. Saini, 352 F .3d 328, 330 (7th Cir. 2003), quoting Lewis v. Sullivan, 279 F.3d 526, 529 (7th Cir. 2002). Allegations of past harm do not suffice--the harm must be imminent or occurring at the time the complaint is filed. .Id Moreover, the prisoner must allege specific facts showing that he is under imminent dangerof seriousphysical WL3132530 at *3 (E.D. Tex. Oct. 23,2007). injury. SeeAlpine v. Long,No. 9-07-CV-234,2007 "Generalallegationsthat arenot groundedin specific factswhich indic atethatseriousphysical injury is imminent arenot sufficientto invoke the exceptionto $ 1915(g)."Niebla v. WaltonComectional No. 3-06-CV-27 I-LAC-EMT, 2006WL 2051307at*2 (N.D. Fla. Jul. 20,2006),citing Martin .Insf., F.3d 1048,1050(8th Cir. 2003). v. Shelton,319 B. Plaintiff was allowed to proceedinforma pauperis in three prior civil actionsfiled in this court while he was incarcerated. All three caseswere dismissedeither as frivolous or for failure to I To the extent plaintiff seeksreleasefrom custody, his complaint must be construed as an application for writ of (5thCir. 1983).However,unlessanduntil Jael<sonv.Torres,720F.2d87'7,879 habeascorpusunder28U.S,C.52254. plaintiff exhaustshis available stateremedies,he may not seekfederal habeasrelief. SeeMaldonado v. Anderson,No. 4-03-CV-0089-Y,2003 WL21212620 at*2 (N.D. Tex. May 13, 2003). statea claim. See Wafer v. Hill, No. 3-07-CV-1647-N (N.D. Tex. Oct. 24,2007), rec. adopted, (N.D. Tex. Dec. 20,2007) (dismissed failureto statea claim); Waferv. Thompson, 3-07-CVfor No. ll43-P,2007 WL 4226358(N.D. Tex. Nov. 30,2007) (dismissed frivolous); llafer v. Cox, No. as as 3-07-CV-0891-D,2007WL4165748 (N.D. Tex. Nov. 20,2007)(dismissed frivolous).2Because plaintiff makesno showing that he is "under imminent dangerof seriousphysical injury," he should not be permitted to maintain this action without paying the statutory filing fee. RECOMMENDATION Plaintiffs applicationto proceedin forma pauperis should be denied. Plaintiff should be orderedto pay the $350.00 statutoryfiling fee within 20 daysafter this recommendationis adopted by the district judge. If he fails to do so, the caseshouldbe dismissedwithout further notice. A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of this report and recommendationmust file See28U.S.C.$ 636(bX1); 10 specificwrittenobjectionswithin daysafterbeingservedwithacopy. Feo. R. Clv. P. 72(b). In order to be specific, an objection must identiff the specific finding or recommendation which objectionis made,statethe basisfor the objection,and specifuthe place to in the magistratejudge's report and recommendationwherethe disputeddeterminationis found. An objection that merely incorporatesby referenceor refers to the briefing before the magistratejudge is not specific. Failure to file specific written objectionswill bar the aggrievedparty from appealing judge that are acceptedor adoptedby the the factual findings and legal conclusionsof the magistrate district court, exceptupon groundsofplain error. SeeDouglassv. United ServicesAutomobile Ass'n, ( 7 9 F . 3 d 1 4 1 5 , 1 4 1 75 t hC i r . 1 9 9 6 ) . 2 Another caseagainsttwo of the defendantsnamed in the instant complaint was dismissedwhen plaintiff failed to pay the filing fee after the court determined he had sufficient funds to do so. See Wafer v. Thompson,No. 3-07-CV1 9 0 6 - 8( N . D . T e x . F e b . 1 9 , 2 0 0 8 ) . DATED: September 2009. 14, MAGISTRATEJUDGE STATES
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