Todd Greathouse v. Texas Department of Criminal Justice

Case: 09-41121 Document: 00511122814 Page: 1 Date Filed: 05/26/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 26, 2010
No. 09-41121
Summary Calendar Lyle W. Cayce
Clerk
TODD DARNELL GREATHOUSE,
Plaintiff-Appellant
v.
TEXAS DEPARTMENT OF CRIMINAL JUSTICE; BRAD LIVINGSTON;
ANITA ESCOBEDO, Texas Department of Criminal Justice Ombudsman;
TIMOTHY LESTER, Assistant Warden; JOHN SMITH, Major; YOLANDA
TAMEZ, Lieutenant; JAMES GARLAND, Sergeant; JEFFERY WEBSTER,
Corrections Officer; WARREN WORTHY, Grievance Officer; ROBERT
GREENVILLE, Senator,
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:09-CV-137
Before KING, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
Proceeding in forma pauperis and pro se, Todd Darnell Greathouse, Texas
inmate # 1246497, appeals the dismissal, without prejudice, of his civil rights
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Case: 09-41121 Document: 00511122814 Page: 2 Date Filed: 05/26/2010
No. 09-41121
complaint for failure to comply with the district court’s order that he pay an
initial partial filing fee of $19.70. Greathouse’s only explanation for why he
refused to comply is that he would have to forgo purchases if required to pay the
fee. Nor does the record indicate he was justified in refusing to pay it.
Greathouse is not barred by the applicable statute of limitations (Texas) from
refiling his complaint. The district court, therefore, did not abuse its discretion
in dismissing his complaint under Federal Rule of Civil Procedure Rule 41(b)
(involuntary dismissal). See McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th
Cir. 1988).
Further, contrary to Greathouse’s contention, the Prison Litigation Reform
Act (PLRA) provisions that require a prisoner to pay the full appellate filing fee
in installments are constitutional. See Norton v. Dimazana, 122 F.3d 286, 290
(5th Cir. 1997). There is no right to proceed in a civil action without paying a
filing fee, and the PLRA requires prisoners to consider the filing cost prior to
filing a civil action in federal court. Id. at 290-91.
Greathouse’s assertion that Boumediene v. Bush, 128 S. Ct. 2229 (2008),
renders this court’s decision in Norton nonbinding is without merit. In
Boumediene, the Supreme Court ruled that aliens held at Guantanamo Bay as
enemy combatants had a right to file habeas corpus applications challenging
their detention; Boumediene does not concern issues relevant to the present case.
See 128 S. Ct. at 2242-77.
This appeal is entirely without merit and is therefore frivolous. See
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, it is dismissed.
See 5 TH C IR. R. 42.2. The dismissal of this appeal as frivolous counts as a strike
for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,
385-87 (5th Cir. 1996). Greathouse is warned that, if he accumulates three
strikes under § 1915(g), he will not be able to proceed in forma pauperis in any
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Case: 09-41121 Document: 00511122814 Page: 3 Date Filed: 05/26/2010
No. 09-41121
civil action or appeal filed while he is incarcerated or detained in any facility
unless he is under imminent danger of serious physical injury. See § 1915(g).
DISMISSED; SANCTION WARNING ISSUED.
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