WILLIAM F. SANDERSON, JR., United States Magistrate Judge
Pursuant to the provisions of 28 U.S.C. § 636 (b), and an order of the District Court in implementation thereof, this case has been referred to the United States magistrate judge. The findings, conclusions and recommendation of the magistrate judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type of Case: This is a civil rights complaint brought by a State inmate pursuant to 42 U.S.C. § 1983. Parties: Plaintiff is currently confined at the Allred Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) in Iowa Park, Texas. Defendant is Wayne Scott, former executive director of TDCJ. The court has not issued process in this case.
Since Plaintiff has not paid the $150.00 filing fee, the court presumes he is seeking leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
Statement of Case: The complaint alleges that prison officials at the Alfred Unit have tampered with Plaintiff legal mail in Cause Nos. 3:02-CV-1806-M and 3:02cv-1807-M. He requests monetary, declaratory and injunctive relief. Findings and Conclusions: The Prison Litigation Reform Act (PLRA), enacted into law on April 26, 1996, amended 28 U.S.C. § 1915 as it relates to civil actions that prisoners file in federal court. Among the changes effected by the PLRA was the inclusion of 28 U.S.C. § 1915 (g), also known as the "three-strike" provision. Section 1915(g) precludes a prisoner from bringing a civil action in forma pauperis if on three or more prior occasions, while confined as a prisoner, he filed civil actions or appeals in federal court which were dismissed, either by a district court or appellate court, as being frivolous, malicious, or for failing to state a claim.
The court's records refute Plaintiffs allegations. The docket sheets in Cause Nos. 3:02-CV-1806-M and 3:02-CV-1807-M reflect motions for leave to proceed in forma pauperis were filed in each case on September 17, 2002, and the filing fees of $5 and $150 respectively were received on September 23, 2002. The docket sheet in Cause No. 3:02-CV-1807-M also reflects that on September 5, 2002, the court received a motion for appointment of counsel with memorandum in support.
A review of the U.S. Party and Case Index reflects that on November 21, 2000, the United States District Court for the Western District of Texas, Waco Division, dismissed one of Plaintiffs prior complaints as barred by three strikes. See Wallace v. Manning, et al., 6:00-CV-290 (W.D. Tex., Waco Div). Although Plaintiff appealed, the Fifth Circuit Court of Appeals dismissed the appeal for want of prosecution.
Because Plaintiff has accumulated at least three "strikes," § 1915(g) precludes him from proceeding in this action in forma pauperis unless he alleges a claim of "imminent danger of serious physical injury" at the time he files the complaint. Banos v. O'Guin, 144 F.3d 883, 884 (5th Cir. 1998). The complaint presents no claim that Plaintiff is in danger of physical injury. See Carson v. Johnson, 112 F.3d 818, 822-823 (5th Cir. 1997); Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996).See also Banos v. O'Guin, 144 F.3d 883 (5th Cir. 1998).
Because the complaint does not fall within the exception to the "three-strike rule" set out in § 1915(g), the District Court should deny Plaintiff leave to proceed in forma pauperis, and give him an opportunity to pay the full filing fee of $150.00 or his action will be dismissed as barred by three strikes. See Adepegba, 103 F.3d at 388.
RECOMMENDATION
For the foregoing reasons, it is recommended that the District Court enter an order denying Plaintiff leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 (g) and directing that this action be dismissed pursuant to § 1915(g) unless Plaintiff tenders the $150.00 filing fee within 30 days of the District Court's order.
A copy of this recommendation will be mailed to Plaintiff.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant toDouglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.