Opinion
C/A No. 4:21-819-RMG-TER
03-26-2021
Supreme Raheem Ackbar, #182864, a/k/a Ronald Gary, #275886, Plaintiff, v. United States of America, Defendant.
Report and Recommendation
This is a civil action filed by a state prisoner, proceeding pro se. Pursuant to 28 U.S.C. § 636(b)(1) and District of South Carolina Local Civil Rule 73.02(B)(2)(e), the undersigned is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the district court.
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of the pro se complaint filed in this case. This review has been conducted pursuant to the procedural provisions of 28 U.S.C. §§ 1915, 1915A, and the Prison Litigation Reform Act of 1996, and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir.1995) (en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir.1983).
This court is required to liberally construe pro se complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Such pro se complaints are held to a less stringent standard than those drafted by attorneys. Id. ; Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Even under this less stringent standard, however, the pro se complaint is subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which plaintiff could prevail, it should do so, but a district court may not rewrite a complaint to include claims that were never presented, construct the plaintiff's legal arguments for him, or conjure up questions never squarely presented to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985); Small v. Endicott, 998 F.2d 411 (7th Cir. 1993); Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990) (The "special judicial solicitude" with which a [court] should view such pro se complaints does not transform the court into an advocate.).
DISCUSSION
Plaintiff has filed a Motion for Leave to Proceed in forma pauperis under 28 U.S.C. § 1915. (ECF No. 2). However, based on Lomax v. Ortiz-Marquez, 140 S. Ct. 1721 (2020), Plaintiff is subject to the "three-strikes" rule of the PLRA, which provides:
In no event shall a prisoner bring a civil action or appeal a judgement in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.28 U.S.C. § 1915(g)(emphasis added). Regardless of dismissal being with or without prejudice, a "strike" is based on the dismissal basis alone. Lomax, 140 S. Ct. at 1725. "A dismissal of a suit for failure to state a claim counts as a strike, whether or not with prejudice." Id. at 1727.
On March 4, 2020, Judge Gergel found:
Lastly, Plaintiff will not be allowed to proceed in forma pauperis in future actions unless he can demonstrate imminent danger of serious physical injury. At least three
of Plaintiff's previous complaints have been dismissed with prejudice. 28 U.S.C. § 1915(g); McLean v. US., 566 F.3d 391 (4th Cir. 2009) (complaint must be dismissed with prejudice to count as a strike under§ 1915); see, e.g., (1) Ackbar v. McCall, No. 4:18-1581-RMG, 2018 WL 3238826 (D.S.C. July 3, 2018) (finding complaint frivolous and dismissing with prejudice, counting dismissal as a strike per 28 U.S.C. § 1915(g)), affirmed, 744 Fed. Appx. 178 (4th Cir. 2018); (2) Ackbar v. Monaco, No. 4:19-1373-RMG, 2019 WL 4784775 (D.S.C. Oct. 1, 2019) (failure to state a claim and dismissal with prejudice), appeal filed, 2019 WL 4784775; (3) Ackbar v. Connor, No. CV 4:18-3181-RMG, 2019 WL 927354 (D.S.C. Feb. 26, 2019) (failure to state a claim and dismissed with prejudice), aff'd, 776 Fed. Appx. 141 (4th Cir. 2019), cert. denied, 140 S. Ct. 603 (2019). The fact Plaintiff's appeal in Monaco is pending does not change this analysis. Coleman v. Tollefson, 135 S. Ct. 1759, 1761 (2015) (stating that courts "must count [a] dismissal even though it remains pending on appeal" when counting strikes under § 1915(g)) (emphasis added)).Ackbar v. Lewis, 4:19-cv-2045 (D.S.C. Mar. 34, 2020, ECF No. 35).
Further, on February 26, 2021, the Fourth Circuit Court of Appeals also found that Plaintiff met the three strikes provision and denied in forma pauperis status:
We have now determined that Ackbar has had three prior actions or appeals dismissed as frivolous, malicious, or for failure to state a claim: Ackbar v. Connor, No. 4:18-cv-3181-RMG (D.S.C. Feb. 26, 2019); Ackbar v. Monaco, No. 4:19-cv-1373-RMG (D.S.C. Oct. 1, 2019); and Ackbar v. Lewis, No. 4:19-cv-2045-RMG (D.S.C. Mar. 4, 2020). Because Ackbar has reached the statutory limit for filing or appealing civil actions under the PLRA without prepayment of the filing fee and has not adequately alleged that he is under imminent danger of serious physical injury, this court rescinds its prior order and denies leave to proceed without the prepayment of fees. Ackbar shall tender the remainder of the requisite $505 filing and docketing fees to the Clerk, U.S. District Court, on or before March 15, 2021.Ackbar v. Jones, 7:20-cv-825-RMG, No. 20-6880 (4th Cir. Feb 26, 2021, ECF No. 13).
Plaintiff has received at least three dismissals for failure to state a claim, thus accumulating "three strikes." Two other cases have held such already.
The three-strikes rule was enacted to bar prisoners, such as the Plaintiff here, who have filed prior litigation in a federal court that has been dismissed with or without prejudice for actions that are "frivolous, malicious, or fails to state a claim upon which relief may be granted," from pursuing certain types of federal civil litigation without prepayment of the filing fee. "The litigant here has accumulated three prior dismissals on statutorily enumerated grounds. Consequently, a court may not afford him in forma pauperis status with respect to his additional civil actions." Coleman v. Tollefson, 575 U.S. 532, 135 S. Ct. 1759, 1761 (2015).
In light of Plaintiff's prior dismissals as discussed above, he cannot now proceed with the instant Complaint in forma pauperis unless his claim satisfies the exception for imminent danger of serious physical injury provided by the three-strikes rule. See 28 U.S.C. § 1915(g). This Complaint does not fit within this exception to enable Plaintiff to proceed in forma pauperis because Plaintiff does not allege imminent danger of serious physical injury. Courts have held that the "imminent danger" exception to § 1915(g)'s "three strikes" rule must be construed narrowly and applied only "for genuine emergencies," where "time is pressing" and "a threat ... is real and proximate" to the alleged official misconduct. Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). As such, to satisfy the imminent danger element, Plaintiff must have alleged facts showing that he was in imminent danger at the time the complaint was filed; allegations that the prisoner has faced imminent danger in the past are insufficient to trigger the exception to section 1915(g). See Johnson v. Warner, 200 Fed. Appx. 270, 272 (4th Cir. 2006); Abdul-Akbar v. McKelvie, 239 F.3d 307,314 (3d Cir. 2001). The imminent danger exception in § 1915(g) "focuses on the risk that the conduct complained of threatens continuing or future injury, not whether the inmate deserves a remedy for past misconduct." Johnson v. Warner, 200 Fed. Appx. at 272 (quoting Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003)).
Plaintiff's current allegations are that this court itself is liable to him for a breach of fiduciary duty in the handling of his prior cases in which he failed to state a claim upon which relief could be granted. (ECF No. 1). Plaintiff cites ERISA as one of the statutes he purports to support this action. Plaintiff's instant complaint is 114 pages long. Plaintiff lists his prior dismissed cases in which he seeks to vacate prior court orders. Plaintiff requests money damages, property, medication, and release from prison. (ECF No. 1). As attachments, Plaintiff attaches multiple reports and orders from this court and the Fourth Circuit Court of Appeals. Plaintiff's allegations do not meet the imminent danger requirement of § 1915(g). "The mere fact that Plaintiff is in prison is insufficient to establish an imminent danger of serious physical injury." See e.g., Blakely v. White, No. 6:15-03782-MGL, 2015 WL 6549172 (D.S.C. October 26, 2015).
Therefore, to proceed with his Complaint, Plaintiff must pay the full filing fee and administrative fee.
Recommendation
Accordingly, it is recommended that Plaintiffs motion for leave to proceed in forma pauperis (ECF No. 2) be denied. To proceed with this Complaint, Plaintiff must pay the full filing fee (currently $350) plus the $52 administrative fee for a total fee due of $402.
Effective May 1, 2013, the Judicial Conference added an administrative fee of $50 to the filing fee of $350. In December 2020, the fee was increased to $52. The $52 administrative fee is not applicable to in forma pauperis cases.
It is further recommended that the Court give Plaintiff fourteen(14) days from the date the United States District Judge rules on this Report and Recommendation (or a specific date determined by the United States District Judge) to pay the full $402 filing fee, in which event this matter can be returned to the undersigned magistrate judge to conduct a review of Plaintiff's complaint. However, if Plaintiff fails to pay the full $402 filing fee within the time period set by the United States District Judge, or seek an extension of time to do so, it is further recommended that, by a self-executing Order or by additional Order of this District Court, the complaint be dismissed without prejudice and without issuance of service of process.
Even if Plaintiff pays the filing fee, all civil lawsuits brought by pro se filers are subject to screening. As such, if Plaintiff timely pays the filing fee, his Complaint will still be subject to review by the undersigned to determine if service of process should be authorized. Moreover, as filed, Plaintiff's Complaint in this action would be subject to summary dismissal.
s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge March 26, 2021
Florence, South Carolina
Plaintiff's attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 2317
Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).