Fitch v. United States Department of Justice et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DAVID KENT FITCH,
(TDCJ # 02444 702),
Plaintiff,
vs.
§
§
§
§
§
§
§
§
UNITED STATES DEPARTMENT OF §
WSTICE, et al., 	§
Defendants.
§
§
CIVIL ACTION NO. H-26-5138
MEMORANDUM OPINION AND. ORDER
David Kent Fitch, (TDCJ #02444 702), is currently incarcerated at the Pack I
Unit 	of the 	Texas 	Department 	of 	Criminal 	Justice-Correctional 	Institutions
Division. 	Proceeding pro se, he filed a complaint seeking. enforcement of the
Freedom of Information Act (FOIA), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C.
§552a. 	(Dkt. 1). 	Specifically, he seeks an injunction to compel the United States
Marshals Service to produce "attorney log-in records at the Henderson County Jail,
located at 206 N. Murchison St, Athens, TX 75751" forJwo dates in 2022. (Dkt. 1-
2, p. 2). Fitch neither paid the applicable filing fee for such an action nor moved to
proceed informa pauperis. 	But because Fitch is not entitled to proceed informa
pauperis, his action is dismissed as explained below.
United States District Court
Southern District of Texas
ENTERED
July 15, 2026
Nathan Ochsner, Clerk
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I. 	DISCUSSION
Fitch is incarcerated, so his action is governed by the Prison Litigation Reform
Act (PLRA), which was enacted, in part, to prevent prisoners from abusing the
privilege of proceeding informa pauperis. See Coleman v. Tollefson, 575 U.S. 532,
535 (2015) (citing Jones v. Bock, 549 U.S. 199, 204 (2007)). 	Under the "three-
strikes rule" established in the PLRA, a prisoner may not bring a civil action informa
pauperis if, while he has been incarcerated, three or more of his civil actions or
appeals have been dismissed as frivolous, malicious, or for failing to state a claim
upon which relief may be granted, unless he is in "imminent danger of serious
physical injury." 28 U.S.C. § 1915(g). This bar applies to all civil actions, including
those under the FOIA and the Privacy Act. See, e.g., Wright v. Curry, 122 F. App'x
724, 725-26 (5th Cir. 2004) (per curiam) (applying § 1915(g) bar in FOIA action);
Cabrera v. U.S. Dep 't of Just., 537 F. App'x 387, 388 (5th Cir. 2013) (per curiam)
(affirming the dismissal of an FOIA action as barred by strikes and imposing a strike
for the appeal); Stewartv. Hardy, No. 1:06-cv-170, 2006 WL 2171021, at *1-2 (E.D.
Tex. July 27, 2006) (dismissing FOIA action as barred by strikes).
Publicly available court records reflect that, while Fitch has been incarcerated,
he has filed at least three civil actions that the courts have dismissed as frivolous,
malicious, or for failing to state a claim upon which relief could be granted. 	See
Fitch v. Adams, et al., No. 1:05-cv-00255-RC-ESH (E.D. Tex. Mar. 15, 2006)
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(dismissed as frivolous due to failure to exhaust administrative remedies); 1 Fitch v.
Adams, et al., No. 3:05-cv-220 (S.D. Tex. Apr. 22, 2008) (dismissed as legally
frivolous); Fitch v. Lappin, et al., No. 1:09-cv-00583-JRN (W.D. Tex. Feb. 22,
2010) (dismissed as frivolous due to failure to exhaust administrative remedies). As
a result of these prior filings, Fitch may not proceed with this civil action in forma
pauperis unless his pleadings show that he is in imminent danger of serious physical
injury. See28U.S.C. § l9l5(g);Banosv. O'Guin, 144F.3d883, 884(5thCir.1998)
(per curiam).
The imminent-danger exception "operates as a safety valve to ensure that,
despite the filing of frivolous lawsuits in the past, an abusive inmate facing future
imminent serious physical injury by prison officials will still be able to pursue a
judicial remedy to prevent such injury." 	Castillo v'. Bickham, No. 14-2917, 2015
WL 251708, at *3 (E.D. La. Jan. 20, 2015). To fall within the exception, the inmate
must be in imminent danger of serious physical injury when he files his complaint
in the district court. 	See Banos, 144 F.3d at 884-85. 	The threat of injury must be
"real and proximate," Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003), and
the inmate must be facing "a genuine emergency" in which "tinie is pressing."
1
Filing an action without exhausting administrativ~ remedies renders the action
frivolous and subject to dismissal for failing to state a claim upon which relief can be
granted. Emmettv. Ebner, 423 F. App'x492, 493-94 (5th Cir. 2011).
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Heimermann v. Litscher, 337 F.3d 781, 782 (7th Cir. 2003) (per curiam); see also
Abdul-Akbar v. McKelvie, 239 F.3d 307, 313 (3d Cir. 2001) ("'Imminent' dangers
are those dangers which are about to occur at any moment or are impending[,. and]
[s]omeone whose danger has passed cannot reasonably be described as someone
who 	'is' 	in 	danger, 	nor 	can 	that 	past 	danger 	reasonably 	be 	described 	as
'imminent.'"). 	Allegations of past harm do not trigger the exception. 	See Choyce
v. Dominguez, 160 F.3d 1068, 1070 (5th Cir. 1998) (per curiam); Stine v. Fed.
Bureau ofPrisons Designation & Sentence Computation Unit, No. 3:13-cv-4253-B,
2013 WL 6640391, at* 1 (N.D .• Tex. Dec. 17, 2013). In addition, "[p]risoners cannot
exempt themselves from the operation of§ 1915(g) by claiming that they are in
imminentdanger at all times and under all circumstances." Morris v. Walls, No. 19-
cv-0006-DC, 2019 WL 12336299, at *3 (W.D. Tex. Jan. 14, 2019); see also Abdul-
Akbar, 	239 	F.3d at 315 	n.1 	(generalized 	complaints· of ongoing harassment,
conspiracies to harm the plaintiff, or other forms of retaliation are insufficient to
show an imminent danger of serious physical injury for purposes of§ 1915(g)).
Moreover, the threatened imminent harm must be related to the allegations in the
plaintiffs complaint. 	See, e.g., Judd v. Fed. Election Comm 'n, 311 F. App'x 730,
731 (5th Cir. 2009) (per curiam); Stine, 571 F. App'x at 354 (rejecting a claim of
imminent danger when the plaintiff did not "plausibly plead any connection between
the alleged imminent danger" and his claims).
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Fitch's complaint does not allege facts showing that he is in imminent danger
of serious physical injury from the delays in processing his FOIA claims. 	He
therefore does not fall within the imminent-danger exception to the three-strikes rule
and is not entitled to proceed in forma pauperis in this action.
II. 	CONCLUSION
Based on the foregoing, the Court ORDERS as follows:
1. The civil action filed by David Kent Fitch, (Dkt. l), is DISMISSED without
prejudice pursuant to 28 U.S.C. § 1915(g).
2. All pending motions are DENIED as moot.
3. Fitch may move to reinstate this case only if he pays the full amount of the
filing fee for a civil action ($405.00) within 30 days from the date of this
Order.
The Clerk will provide a copy of this Order to. the plaintiff. 	The Clerk will
also provide a copy of this order to the Manager of the Three Strikes List for
the Southern District of Texas at: Three_Strikes@txs.uscourts.gov.
SIGNED at Houston, Texas on 	~ . 1't. 	,2026.
~~-DAVID HIT1NER
UNITED STATES DISTRICT JUDGE
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