Humphrey v. Luna ( 1995 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_________________________
No. 95-20204
(Summary Calendar)
_________________________
MICHAEL THOMAS HUMPHREY,
Plaintiff-Appellant,
versus
J. F. LUNA,
Defendant-Appellee.
CONSOLIDATED WITH
_________________________
No. 95-20212
(Summary Calendar)
_________________________
MICHAEL THOMAS HUMPHREY,
Plaintiff-Appellant,
versus
WARLORD, Sgt., MURCHINSON,
Officer, and BUTCHER, Officer,
Defendants-Appellees.
CONSOLIDATED WITH
_________________________
No. 95-20253
(Summary Calendar)
_________________________
MICHAEL THOMAS HUMPHREY,
Plaintiff-Appellant,
versus
G. L. JOHNSON,
Defendant-Appellee.
____________________________________________________
Appeal from United States District Court
for the Southern District of Texas
(CA-H-94-4421)
__________________________________________________
June 21, 1995
Before DUHÉ, WIENER and STEWART, Circuit Judges.
PER CURIAM:*
Appellant Michael Thomas Humphrey is an in forma pauperis
Texas state prisoner who has earned a reputation as a frequent
filer of frivolous § 1983 actions in the Southern District of
Texas, Houston Division. After almost twenty suits which Humphrey
filed in Houston failed to earn him any victories, he resorted to
filing his claims in the federal district court in the Eastern
District of Texas, Tyler Division, although that court was one of
improper venue for the claims Humphrey raised. Another obvious
reason Humphrey moved his filing practices to Tyler is that he
finally had been sanctioned by the district judge in Houston, who
had finally had enough of Humphrey's proclivity for filing suits.
By Humphrey's own count, he filed at least twenty-five suits in
Tyler. However, only three of those cases form the basis for the
instant appeal. The district court in Tyler transferred the three
suits south to their proper venue in the Houston district court.
In Houston, Humphrey's transferred suits were not greeted by
the Houston judge with any more hospitality than the other suits
which Humphrey had filed directly in that court. The Houston
judge, being all too familiar with Humphrey's filing practices,
dismissed all three of the suits sua sponte pursuant to 28 U.S.C.
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
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§ 1915(d), finding that they were malicious and/or frivolous. The
court observed that Humphrey has engaged in a pattern of filing
suits which require transfer and which successively raise the same
claim, and he has failed to prosecute the cases he files. The
district court also noted that Humphrey had been sanctioned by that
court for his continued abuse of the judicial system and that he
had been barred from filing any more suits without prior judicial
approval. The district court was convinced that Humphrey
maliciously had begun filing suits in the Tyler venue to avoid the
judicial review bar imposed in Houston. In two of the instant
cases, Humphrey was assessed sanctions of $55 and $60,
respectively, in addition to having his claims dismissed pursuant
to § 1915(d). Humphrey has appealed the orders of dismissal in
each of the three suits.
Although the cases were appealed separately, we have
consolidated them because they involve essentially the same
allegations. The three suits at issue were § 1983 actions filed in
Tyler against various prison officials during the three successive
months of August, September, and October of 1990. The suits
complain of numerous alleged constitutional violations concerning
Humphrey's prison experience.
DISCUSSION
Liberally construed, Humphrey's appellate briefs argue that
the district court erred in dismissing his actions. Humphrey's
briefs and notices of appeal also contain additional allegations
and requests which were not presented to the district court. These
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additional claims include the request of a class action
certification, allegations of sexual harassment, failure to protect
from violent inmates, inadequate ventilation, and an inadequate
variety of food at mealtimes. To the extent that Humphrey is
raising new issues on appeal, "issues raised for the first time on
appeal are not reviewable by this court unless they involve purely
legal questions and failure to consider them would result in
manifest injustice." Varnado v. Lynaugh, 920 F.2d 320, 321 (5th
Cir. 1991). Humphrey's issues would necessarily involve fact
questions not asserted below. Therefore, this court need not
consider them.
Pursuant to 28 U.S.C. § 1915(d), a district court may dismiss
an in forma pauperis complaint if it determines that the action is
frivolous or malicious. This court reviews a district court's §
1915(d) dismissal for abuse of discretion. Denton v. Hernandez,
504 U.S. 25, 112 S.Ct. 1728, 1734 (1992).
A review of all three of the complaints Humphrey filed reveals
that the district court did not abuse its discretion in dismissing
his claims. The complaints by and large contain "stream of
consciousness" lists of alleged acts of wrongdoing on the part of
prison officials, most of which reveal themselves to be frivolous,
if not ridiculous, by their very nature. Humphrey's complaints
range from allegations that the prison "do[es] not serve enough
syrup with the pancakes" and that they do not serve salt and
pepper, to his commentary that the bunks need to be repainted, the
"water taste[s] bad," and that the guard "rolls the door to [sic]
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fast." Other of Humphrey's allegations contain vague assertions of
harrassment or mistreatment by prison guards on isolated occasions
and also reports of isolated instances of prison inconveniences,
such as an occasion in which he was not permitted to shower and did
not have a fresh change of sheets for his bed or a fresh change of
clothes (apparently while he was on some sort of disciplinary
detention).
The second and third suits filed by Humphrey raise
essentially the same claims as his first suit. However, our use of
the terms "first," "second," and "third" when referring to these
appealed cases is actually a misnomer because, as noted above,
these three suits are not the only suits Humphrey has filed. He
has filed at least eighteen suits in the Houston Division and by
his own count at least twenty-five suits in Tyler. This court has
held that it is malicious for a pauper to file successive IFP suits
that duplicate claims made in other pending or previous lawsuits.
Pittman v. Moore, 980 F.2d 994, 995 (5th Cir. 1993) (pending
lawsuits); Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988)
(previous lawsuits). Because Humphrey's second and third suits
raise essentially the same claims as his "first" suit, they were
properly dismissed by the district court as malicious and abusive
of the legal process because they were successive in nature.
Moreover, both suits were filed in the district court in Tyler
after the Houston court issued the judicial review bar requiring
that Humphrey obtain judicial approval prior to filing any more
suits. Humphrey also abused the legal system in his attempt to
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circumvent the Houston Division district court's sanction of
judicial review prior to filing by deliberately filing actions in
the Eastern District of Texas, Tyler Division, which require
transfer to the Southern District of Texas, Houston Division. By
Humphrey's own admission he has filed seven civil suits in the
Houston Division and over twenty-five cases in the Tyler Division
within three months of the case in which he was sanctioned with
judicial review of his prospective lawsuit pending any filing.
As to Humphrey's "first" suit, we are unable to specifically
verify whether any of Humphrey's numerous allegations therein had
previously been raised in any of his many suits. However, given
the sheer volume of prior suits filed, we consider it highly
probable that Humphrey's complaints about the conditions of his
confinement raised in the "first" suit were successive. In any
event, the claims raised therein were properly dismissed.1
Moreover, although Humphrey filed his "first" suit in Tyler prior
to the issuance of the judicial review order in the Houston court,2
he undoubtedly resorted to filing in Tyler in the first instance
because of the reputation he had earned in Houston. Thus, a spirit
of maliciousness clearly motivated his actions. Humphrey
has become one of an ever-increasing number of recreational
litigators who populate our prisons. See Gabel v. Lynaugh, 835
1
Humphrey's claims are not unlike the "plethora of vague and
largely incomprehensible claims" relating to daily prison life
which were held to have been properly dismissed in Mayfield v.
Collins, 918 F.2d 560, 561 (5th Cir. 1990).
2
The judicial review order was issued August 30, 1994.
Humphrey's first suit was filed in Tyler on August 15, 1994.
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F.2d 124, 125 n.1 (5th Cir. 1988) (per curiam) ("pro se civil
rights litigation has become a recreational activity for state
prisoners in our Circuit"). His jailhouse lawyering constitutes a
flagrant abuse of the judicial system which cannot be tolerated.
See Hardwick v. Brinson, 523 F.2d 798, 800 (5th Cir. 1975) ("[N]o
one, rich or poor, is entitled to abuse the judicial process.").
In order to protect the district courts within our territorial
jurisdiction from further abuse by Humphrey, we have concluded that
a judicial review restriction like the one previously imposed by
the Houston court should be imposed for the entire Fifth Circuit.
Thus, before Humphrey can file any claims in the future in any
federal district court in the circuit, he must obtain prior
judicial approval.
Conclusion
We AFFIRM the district court's dismissal of Humphrey's suits
and ORDER that a judicial review restriction is hereby imposed
throughout the entire Fifth Circuit, barring Humphrey from filing
any more suits in the federal district courts without prior
judicial approval. Thus, no Clerk of Court within this circuit's
territorial jurisdiction shall accept for filing any petition filed
by Michael Thomas Humphrey without prior judicial approval.
Humphrey's failure to comply with this condition will result in the
imposition of additional sanctions by this court.
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