Johnson et al v. Myers et al

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No. 6:25-cv-00125
Richard James Johnson et al.,
Plaintiffs,
v.
Samantha Myers et al.,
Defendants.
O R D E R
Plaintiff Richard J. Johnson, an inmate proceeding pro se,
sued defendants for allegedly placing him and his family in a room
with an armed felon, who then killed plaintiff’s wife and himself,
and for retaliating against plaintiff for reporting the incident by
placing his child in CPS custody, where she was assaulted. Doc. 1
at 4. Plaintiff further alleges “life endangerment,” requests an
emergency injunction, and lists as “federal question[s]” whether
“lower courts” can “block access to petitioners that are prisoners
because they are in jail” and whether state agencies can “act ex-
tra-judiciously.” Id. at 1. Additionally, the complaint lists “E.J.
Johnson” as a plaintiff but provides no information on who that
person is or what claims that person makes in this lawsuit. Id.
The court referred the case to a magistrate judge, who issued
a report recommending that that the lawsuit be dismissed with
prejudice. Doc. 4 at 4. The report explained that the lawsuit iden-
tified two plaintiffs—Richard Johnson and E.J. Johnson—but that
E.J. Johnson did not sign the complaint, has not paid the filing fee,
has not sought in forma pauperis (IFP) status, and does not appear
to be a proper party. Id. at 1–2. The report then observed that
plaintiff Richard Johnson, an inmate proceeding pro se and who
seeks IFP status, is barred by the Prison Reform Litigation Act
(PLRA) from proceeding in forma pauperis unless he shows that
he is in imminent danger of serious physical injury. Id. at 3. Plain-
tiff, the report explains, has made no such showing. Id. at 4. The
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report therefore recommends dismissal with prejudice as to the
refiling of another in forma pauperis lawsuit raising the same
claims but without prejudice as to the refiling of this lawsuit upon
payment of the full filing fee or proof of imminent danger to plain-
tiff of serious physical injury. Id. at 4–5. Plaintiff Richard Johnson
timely filed written objections. Doc. 5. Plaintiff E.J. Johnson did
not file written objections.
The court reviews the objected-to portions of a magistrate
judge’s report and recommendation de novo. 28 U.S.C.
§ 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3). “Parties filing objections
must specifically identify those findings objected to. Frivolous,
conclusive, or general objections need not be considered by the
district court.” Nettles v. Wainwright, 677 F.2d 404, 410 n.8 (5th
Cir. Unit B 1982) (en banc), overruled on other grounds by Douglass
v. United Servs. Auto. Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc).
When there have been no timely objections to a report, or the ob-
jections are improper, “the court need only satisfy itself that there
is no clear error on the face of the record.” Fed. R. Civ. P. 72(b),
advisory committee’s notes to 1983 amendment.
First, plaintiff objects that he is not in prison or sentenced to
prison and that the PLRA does not bar his suit. Doc. 5. The PLRA
defines the term “prisoner” as “any person incarcerated or de-
tained in any facility who is accused of, convicted of, sentenced
for, or adjudicated delinquent for, violations of criminal law or the
terms and conditions of parole, probation, pretrial release, or di-
versionary program.” 28 U.S.C. § 1915(h). Plaintiff is confined in
the Navarro County Jail, as shown by the return address on his
objections. Doc. 5-1. Moreover, online records for the Navarro
County Sherriff’s Department show that he is being held on crim-
inal charges and for a parole violation. See Richard James Johnson,
Navarro County Justice Center – Inmate Details, http://jail-
roster.ncsotx.org/inmate-details?id=wbu7TZJA6yk%253d&bid=o
IEAps1luvI%253d. Plaintiff is therefore a prisoner as defined by
the PLRA. Plaintiff’s first objection is overruled.
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Second, plaintiff objects that “dismissal with prejudice is not
required in this case” and “would be punitive.” Doc. 5. The ob-
jection is conclusory and fails to engage with the report’s reasons
for its recommendations. Moreover, plaintiff does not object to
the report’s findings that he has three strikes under the PLRA.
Under the PLRA, a prisoner with three strikes may not bring a
civil action in forma pauperis unless he shows that he is in immi-
nent danger of serious physical injury. 28 U.S.C. § 1915(g). The
recommended dismissal comports with that statutory bar. Plain-
tiff’s second objection is overruled.
Third, plaintiff objects that no hearing was held to determine
if an imminent danger exists. Doc. 5. No such factfinding hearing
is required; rather, it is plaintiff’s burden to make such a showing
“at the time that he seeks to file his suit in district court or . . .
files a motion to proceed IFP.” See Banos v. O’Guin, 144 F.3d 883,
884 (5th Cir. 1998) (per curiam); see also Carson v. Johnson, 112
F.3d 818, 823 (5th Cir. 1997) (explaining that a prisoner with three
strikes may not proceed IFP in “any . . . federal lawsuit which does
not involve ‘imminent danger of serious physical injury’”). Plain-
tiff’s third objection is overruled.
Fourth, plaintiff objects that the PLRA does not apply because
“this case has nothing to do with jail standards or prison.” Doc.
5. The PLRA applies to “a civil action.” 28 U.S.C. § 1915(g).
Plaintiff’s fourth objection is overruled.
Fifth, plaintiff objects that he is “temporarily” in jail and is
not incarcerated in a prison. Doc. 5. The PLRA does not distin-
guish between prisoners detained or incarcerated in a jail and
those incarcerated in a prison. 28 U.S.C. § 1915(h). Plaintiff’s fifth
objection is overruled.
Sixth, plaintiff asserts that his daughter’s life is in imminent
danger. Doc. 5. His statement is conclusory and unsubstantiated.
Moreover, as explained above, the PLRA bars a prisoner with
three strikes from bringing a civil action in forma pauperis unless
he shows that he—not someone else—is in imminent danger of
serious physical injury. 28 U.S.C. § 1915(g). Plaintiff’s allegation
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regarding his daughter does not make that showing. Plaintiff’s
sixth objection is overruled.
Having reviewed the report de novo and being satisfied that it
contains no error, the court accepts its findings and recommenda-
tions. All claims in this matter are dismissed with prejudice as to
the refiling of another in forma pauperis lawsuit by plaintiff Rich-
ard Johnson raising the same claims, but without prejudice as to
the refiling of this lawsuit upon payment of the full filing fee or a
showing that the lawsuit involves imminent danger of serious
physical injury to plaintiff. This dismissal shall not affect the right
of plaintiff E.J. Johnson to refile the lawsuit and seek leave to pro-
ceed in forma pauperis without plaintiff Richard Johnson as a co-
plaintiff. If plaintiff Richard Johnson pays the full filing fee within
15 days of entry of this order, the case shall be reopened and per-
mitted to proceed as though the filing fee was paid at the outset.
Any pending motions are denied as moot.
So ordered by the court on January 9, 2026.
J. CAM PB EL L BA RK ER
United States District Judge
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