Sarres,Mendoza v. Davis et al, No. 4:2018cv04003 - Document 3 (S.D. Tex. 2018)
Court Description: MEMORANDUM OPINION AND ORDER dismissing 1 Complaint, denying 1 Request for Leave to Proceed IFP. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
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Sarres,Mendoza v. Davis et al Doc. 3 United States District Court Southern District of Texas ENTERED October 25, 2018 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION OSCAR ARMANDO SARRES MENDOZA, A #072810778, § § § § § § § § Plaintiff, v. LORIE DAVIS, et al., David J. Bradley, Clerk CIVIL ACTION NO. H-18-4003 § § Defendants. MEMORANDUM OPINION AND ORDER The plaintiff, Oscar Armando Sarres Mendoza also known as Oscar Armando action under 42 U.S.C. concerning an § incident (TDCJ #1361831), 1983 ("Complaint") that occurred (A #072810778), has filed a civil (Docket Entry No. 1), while he was previously confined in the Texas Department of Criminal Justice - Correctional Institutions Division ("TDCJ"). Because the plaintiff has not paid the filing fee, the court is required to scrutinize the claims and dismiss the complaint, in whole or in part, if it determines that . the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted" or "seeks monetary relief from a defendant who 1915 (e) (2) (B). is immune After from such reviewing plaintiff's litigation history, all relief." of the 28 pleadings u.s.c. and § the the court will dismiss this case for the reasons explained briefly below. The plaintiff is a Honduran national, who is currently in Dockets.Justia.com custody of immigration officials awaiting his United States, following a criminal removal conviction for from the aggravated robbery with a deadly weapon. 1 While serving the prison sentence that he received in that case, the plaintiff claims that he was assaulted by multiple prisoners at the Wallace Unit and that prison officials failed to protect him from harm. Entry No. 1, p. 2. TDCJ Director Invoking 42 U.S.C. Lorie Davis and the § See Complaint, Docket 1983, the plaintiff sues "State Classification [R]ecords Office" in connection with that incident. 4. and See id. at 2- He requests declaratory and injunctive relief as well as "900 Hundred Millions of Dollars" in compensatory damages. See id. at 1' 4. A national case index reflects that, while incarcerated, the plaintiff has filed more than three other civil actions and an appeal in federal court that have been dismissed as malicious, or for failure to state a claim. Guerrero, et al., Civil No. 1:13-0040 Oscar Armando v. William Stephens, (N.D. Tex. July 22, See Oscar Armando v. (N.D. Tex. Oct. et al., frivolous, Civil No. 17, 2014); 1: 15-00 93 2016); Oscar Armando v. William Stephens, et al., Civil No. 1:15-0181 (N.D. Tex. Aug. 3, 2015); Oscar Armando v. Lorie Davis, et al., Appeal No. 16-11178 (5th Cir. June 1, 2017); 1 See Petition, Docket Entry No. 1, p. 2 8, in Mendoza v. Sessions, Civil No. H-18-3012 (S.D. Tex.); see also Mendoza v. State, No. 05-06-00582-CR, 2007 WL 1054166 (Tex. App. - Dallas April 10, 2007, no pet.). -2- and Oscar Armando v. N.P. Tenorio et al., Civil No. 2:15-0270 (N.D. Tex. Oct. 28, 2015) . 2 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 were dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted, unless he injury." 28 U.S.C. is § in "imminent 1915(g). danger of serious physical Although the plaintiff clearly has more than three strikes against him, an immigration detainee is not considered a "prisoner" for purposes of 106 F.3d 680, 683 (5th Cir. 1997). paid the filing fee, however, plaintiff's See Ojo v. INS, Because the plaintiff has not this case remains subject to the screening provisions found in 28 U.S.C. The 1915 (g). § litigation § 1915(e) (2) (B). history reflects that the allegations lodged in the Complaint concerning the incident that occurred at the Wallace Unit have been litigated previously and dismissed with prejudice. See Oscar Armando v. Guerrero, et al., Civil No. 1:13-0040 (N.D. Tex. Oct. 17, 2014). Subsequent attempts by the plaintiff to lodge these claims against Davis's predecessor, William Stephens, have also been dismissed as barred by limitations and res judicata. See Oscar Armando v. William Stephens, et al., 2 The plaintiff specifically references Civil No. 1:13-0040 in his pleadings. See Complaint, Docket Entry No. 1, p. 2. The court was able to attribute all of these cases to the plaintiff by matching his current and former prisoner identification numbers. -3- Civil No. 1:15-0093 (N.D. Tex. July 22, William Stephens, et al., Civil No. 2016); Oscar Armando v. 1:15-0181 (N.D. Tex. Aug. 3, 2015). A complaint is considered malicious for purposes 28 U.S.C. § 1915 (e) if it duplicates allegations made in another lawsuit by the same plaintiff. 994 (5th Cir. 1993) federal See Pittman v. Moore, 980 F.2d 994, (per curiam). Because the plaintiff's pending Complaint attempts to lodge the same or similar claims that have been litigated previously and were dismissed with prejudice, the court concludes malicious. 198 9) See, that this action is subject ~' Wilson v. Lynaugh, to dismissal as 878 F.2d 846 (5th Cir. (duplicative claims may be dismissed sua sponte) . For this reason, the Complaint will be dismissed with prejudice. Accordingly, the court ORDERS as follows: 1. The civil rights action filed by the plaintiff, Oscar Armando Sarres Mendoza (A#072810778), is DISMISSED with prejudice as duplicative and malicious. 2. To the extent that the plaintiff requests leave proceed in forma pauperis, that request is DENIED. to The Clerk will provide a copy of this Memorandum Opinion and Order to the plaintiff. SIGNED at Houston, Texas, on this 'lNA day SIM LAKE UNITED STATES DISTRICT JUDGE -4-
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