Clay v. State Class Dept of TDCJ ( 2023 )

Case: 22-40507 Document: 00516683850 Page: 1 Date Filed: 03/21/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
FILED
No. 22-40507 March 21, 2023
____________
Lyle W. Cayce
Thomas H. Clay, Clerk
Plaintiff—Appellant,
versus
State Classification Department of TDCJ; Chief of the
SCC Transfer Department; Bryan Collier, Executive
Director; Lanette Linthicum, TDCJ Health Services Medical
Director; Ernestine Julye, Medical Facility Director; Paul Reilly,
P.A.; TDCJ Administrative Employees; Correctional
Unit Officers,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:22-CV-21
______________________________
Before Clement, Higginson, and Duncan, Circuit Judges.
Per Curiam:*
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-40507 Document: 00516683850 Page: 2 Date Filed: 03/21/2023
No. 22-40507
Thomas H. Clay, Texas prisoner # 1124123, moves to appeal in forma
pauperis (IFP) from the district court’s dismissal without prejudice of his 42
U.S.C. § 1983 complaint. He seeks to contest the district court’s finding that
he was barred from proceeding IFP in the district court by the three-strikes
provision of 28 U.S.C. § 1915(g) and by an order issued in a previously filed
civil case precluding him from future filings until he paid the full filing fee for
that complaint. See Clay v. Zeon, No. 4:14-CV-57 (S.D. Tex. Aug. 20, 2014).
Pursuant to § 1915(g), a prisoner may not proceed IFP in an appeal of
a judgment in a civil action if he has, on three or more prior occasions, while
incarcerated, brought an action or appeal that was dismissed as frivolous or
malicious or for failure to state a claim upon which relief may be granted,
unless he is under imminent danger of serious physical injury. § 1915(g). A
prisoner with three strikes is entitled to proceed with his action or appeal only
if he is “in imminent danger at the time that he seeks to file his suit in district
court or seeks to proceed with his appeal or files a motion to proceed IFP.”
Baños v. O’Guin, 144 F.3d 883, 884 (5th Cir. 1998).
Clay first alleges that he is not subject to the § 1915(g) bar because his
prior dismissals did not qualify as countable strikes. Yet Clay provides no
explanation as to why the three-strike bar should not apply. And, critically,
we have already held both before and after Brown v. Megg, 857 F.3d 287, 290-
91 (5th Cir. 2017), that Clay has three strikes for purposes of § 1915(g). Clay
v. UTMBH CMC Estelle Unit Med. Emps., 752 F. App’x 195, 195 (5th Cir.
2019); Clay v. Stephens, 597 F. App’x 261, 262 (5th Cir. 2015). Finally, Clay’s
suggestion that § 1915(g) violates his right to access the courts is unavailing.
See Carson v. Johnson, 112 F.3d 818, 821 (5th Cir. 1997).
Additionally, Clay asserts that the district court wrongly decided that
he was barred from proceeding on an IFP basis pursuant to a preclusion order
in the Southern District of Texas. See Clay v. Zeon, No. H-14-0057, 2014 WL
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No. 22-40507
4168354, at *5-6 (S.D. Tex. Aug. 20, 2014). We have previously upheld a
district court’s enforcement of sanctions imposed by other federal district
courts. See Balawajder v. Scott, 160 F.3d 1066, 1067-68 (5th Cir. 1998). Here,
Clay does not dispute that he has not paid the filing fee due in the Southern
District of Texas, nor is there any indication that the preclusion order was
modified or rescinded, or that his § 1983 suit is excepted from the order. And
Clay has a long history of frivolous and repetitive pleadings. Accordingly, the
district court did not abuse its discretion in deciding to enforce the preclusion
order. See Gelabert v. Lynaugh, 894 F.2d 746, 747-48 (5th Cir. 1990).
Finally, Clay argues that the § 1915(g) bar should not apply because he
is under imminent danger of serious physical injury. He contends that he has
developed an antibiotic-resistant staph infection that has not been properly
treated and has caused his health to worsen. Clay also asserts that he is
housed in a cell in which he cannot use his wheelchair and that his wheelchair
is occasionally confiscated, meaning that he is forced to walk and stand. He
further contends that his food has been contaminated and that “toxic
powder” has been “bombarded” into his cell. Moreover, he complains of
other aspects of his medical care, states that his cell is at times flooded, and
alleges that door slamming in his unit has caused him to suffer post-traumatic
stress disorder.
These allegations are not sufficient to establish that Clay was under
imminent danger of serious physical injury at the time that he sought to
appeal IFP. See § 1915(g); Baños, 144 F.3d at 884-85. In other words, Clay
may not show imminent danger based on events that do not implicate specific
ongoing harm at the relevant time—when he filed his motion to proceed IFP
on appeal. See Choyce v. Dominguez, 160 F.3d 1068, 1071 (5th Cir. 1998).
Clay’s § 1983 complaint involves acts and decisions made while he was
imprisoned in the Polunsky Unit. At the time Clay filed his appeal and sought
leave to proceed IFP, however, he was imprisoned in the Michael Unit. Clay
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No. 22-40507
has not plausibly alleged that his experience in the Polunsky Unit is
connected in any way to his experience in the Michael Unit, nor has he
otherwise offered any facts or evidence to support that the imminent-danger
exception applies. Instead, he presents speculative, vague, and conclusory
allegations that do not demonstrate that he faced a danger of a particular
serious physical injury. See Baños, 144 F.3d at 884-85.
Given the foregoing, Clay’s motion for leave to proceed IFP is
DENIED. For the same reasons, his appeal from the district court’s
dismissal of his suit without prejudice as barred § 1915(g) and the order of
preclusion is frivolous and is DISMISSED. See 5th Cir. R. 42.2; Baugh
v. Taylor, 117 F.3d 197, 202 n.24 (5th Cir. 1997).
Because Clay continues to file frivolous pleadings and previously was
warned that future frivolous or repetitive filings would subject him to further
sanctions, he is ORDERED to pay a monetary sanction in the amount of
$100 payable to the clerk of this court. Clay is BARRED from filing any
pleading in this court or in any court subject to its jurisdiction until the
sanction is paid unless he first obtains leave of the court in which he seeks to
file a pleading. Further, he again is WARNED that any future frivolous,
repetitive, or otherwise abusive filings will invite the imposition of additional
sanctions, which might include dismissal, further monetary sanctions, and
restrictions on his ability to file pleadings in this court and any court subject
to this court’s jurisdiction. Clay should review any pending matters and move
to dismiss any that are frivolous, repetitive, or otherwise abusive.
IFP MOTION DENIED; APPEAL DISMISSED AS
FRIVOLOUS; SANCTION IMPOSED; SANCTION WARNING
ISSUED.
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