Opinion
C/A 3:21-cv-01941-JD-JDA
07-02-2021
Terron Gerhard Dizzley, Plaintiff, v. Jeanette W. McBride, Robert E. Hood, Defendants.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin, United States Magistrate Judge
Terron Gerhard Dizzley (“Plaintiff”), proceeding pro se, brings this civil action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights. Pursuant to 28 U.S.C. § 636(b)(1), and District of South Carolina Local Civil Rule 73.02(B)(2)(e), the undersigned Magistrate Judge is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the District Court.
Plaintiff is a state inmate in the custody of the South Carolina Department of Corrections (“SCDC”) and is currently incarcerated at the Broad River Correctional Institution. Plaintiff files this action requesting leave to proceed in forma pauperis under 28 U.S.C. § 1915. [Doc. 3.] However, the undersigned concludes that Plaintiff is subject to the three-strikes rule of the Prison Litigation Reform Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321-71 (1996) (“PLRA”). Accordingly, for the reasons explained below, it is recommended that the motion to proceed in forma pauperis be denied and that the Complaint be dismissed unless Plaintiff timely pays the full filing fee.
BACKGROUND
Plaintiff commenced this action by filing a Complaint against the above-named Defendants. [Doc. 1.] Plaintiff alleges that Defendants violated his First, Fifth, Eighth, and Fourteenth Amendment rights as well as certain federal statutes. [Id. at 4.] For his relief, Plaintiff seeks $300,000 in actual and punitive damages against Defendant McBride and $300,000 in actual and punitive damages against Defendant Hood. [Id. at 6.] According to Plaintiff, the events giving rise to his claims result from a state court appeal from his purportedly unlawful conviction. [Id. at 7.] In sum, Plaintiff contends that Defendant McBride, the Richland County Clerk of Court, denied him access to the courts and engaged in a conspiracy to commit false imprisonment, kidnapping, obstruction of justice, and fraud on the court. [Id. at 13.] Plaintiff also contends that Defendant Hood, the Chief Administrative Judge, failed to investigate facts related to Plaintiff's criminal case and engaged in a conspiracy to commit false imprisonment, kidnapping, and wilful blindness. [Id.]
APPLICABLE LAW
The PLRA requires this Court to engage in a preliminary screening of any complaint in which a prisoner seeks redress from a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must identify “cognizable claims or dismiss the complaint, or any portion [thereof, that] is frivolous, malicious, or fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915A(b)(1). Further, the PLRA limits the ability of prisoners to file civil actions without prepayment of filing fees in what has become known as the three-strikes rule. Jones v. Bock, 549 U.S. 199, 203-04 (2007). The three-strikes rule, codified at 28 U.S.C. § 1915(g), provides:
In no event shall a prisoner bring a civil action or appeal a judgment 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). Thus, “[w]hen a prisoner has previously filed at least three actions or appeals that were dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted, the [PLRA's] ‘three strikes' provision requires that the prisoner demonstrate imminent danger of serious physical injury in order to proceed without prepayment of fees.” McLean v. United States, 566 F.3d 391, 393-94 (4th Cir. 2009) (citing 28 U.S.C. § 1915(g)), abrogated on other grounds by Lomax v. Ortiz-Marquez, 140 S.Ct. 1721 (2020).
In Lomax, the Supreme Court held that a dismissal without prejudice for failure to state a claim qualifies as a strike under Section 1915(g), abrogating the holding of McLean that a dismissal without prejudice for failure to state a claim does not constitute a strike. Lomax, 140 S.Ct. at 1724.
The PLRA's three-strikes rule was enacted to bar prisoners, such as Plaintiff, who have filed prior frivolous or meritless litigation in a federal court from pursuing certain types of federal civil litigation without prepayment of the filing fee. Lomax, 140 S.Ct. at 1726. To avoid application of 28 U.S.C. § 1915(g), a prisoner may prepay the filing fee in full. Nevertheless, all civil lawsuits brought by prisoners seeking relief from a governmental entity, officer, or employee are subject to screening pursuant to 28 U.S.C. § 1915A, even those lawsuits where the full filing fee is paid at the time of filing. See Green v. Young, 454 F.3d 405, 407 (4th Cir. 2006).
DISCUSSION
Here, Plaintiff is subject to the three-strikes rule under 28 U.S.C. § 1915(g). Plaintiff is a “frequent filer” who has filed approximately fourteen cases in this Court. At least four of Plaintiff's prior cases may be deemed a strike under the PLRA in accordance with the standard set forth in Lomax:
See case numbers 21-1941, 20-3613, 20-3590, 20-2613, 20-0991, 20-0126, 192665, 19-1584, 19-0530, 19-0181, 18-2053, 18-1951, 18-1692, 17-0213.
In addition to the four cases cited herein, the undersigned notes that some of Plaintiff's other cases likely would also qualify for a strike under the PLRA in light of Lomax. For example, on October 30, 2020, the undersigned entered a Report and Recommendation in case number 20-3613, which remains pending, recommending summary dismissal of the complaint as frivolous and that the dismissal be deemed a strike. See Dizzley v. Chiles, No. 20-3613, Doc. 9 (D.S.C. Oct. 30, 2020).
1. Dizzley v. Hixson, No. 2:20-cv-2613, Doc. 40 (D.S.C. Mar. 24, 2021) (summarily dismissing the complaint as frivolous and for failure to state a claim and designating the dismissal a strike under the PLRA);
2. Dizzley v. Hixson, No. 2:20-cv-0991, Doc. 12 (D.S.C. Apr. 16, 2020) (summarily dismissing the complaint as frivolous and for failure to state a claim because the defendants were entitled to immunity and the claims were barred by the Heck doctrine);
3. Dizzley v. Garrett, No. 2:19-cv-0530, Doc. 39 (D.S.C. May 17, 2021) (summarily dismissing the complaint as frivolous because the claims were time-barred by the applicable statute of limitations).
4. Dizzley v. South Carolina, No. 2:18-cv-1951, Doc. 22 (D.S.C. Nov. 9, 2018) (summarily dismissing the complaint for failure to state a claim for relief).
The Court takes judicial notice of Plaintiff's prior actions filed in this Court. See Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining that courts “may properly take judicial notice of matters of public record”); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“We note that ‘the most frequent use of judicial notice is in noticing the content of court records.'”).
In light of his numerous prior strikes, Plaintiff cannot proceed with the instant Complaint under the in forma pauperis statute unless his claims satisfy the exception for imminent physical harm provided by the three-strikes rule. See 28 U.S.C. § 1915(g); Torres v. O'Quinn, 612 F.3d 237, 246 (4th Cir. 2010).
Plaintiff's claims do not satisfy the § 1915(g) standard of “imminent danger of serious physical injury.” In order to invoke the “imminent danger” exception of § 1915(g), an “inmate must make ‘specific fact allegations of ongoing serious injury, or of a pattern of misconduct evidencing the likelihood of imminent serious physical injury.'” Johnson v. Warner, 200 Fed.Appx. 270, 272 (4th Cir. 2006) (quoting Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003)). Additionally, allegations that are remote, speculative, or hypothetical do not rise to the level of “imminent danger.” See Welch v. Selsky, No. 9:06-cv-00812-LEK-DEP, 2008 WL 238553, at *5 (N.D.N.Y. Jan. 28, 2008) (“The imminent danger an inmate faces, moreover, must be real, and not merely speculative or hypothetical.”); Riches v. Harrelson, No. 6:08-cv-0685-MBS, 2008 WL 1744603, at *3 (D.S.C. Apr. 10, 2008).
Plaintiff has not alleged that his life is in imminent danger. Indeed, the purported misconduct for which Plaintiff seeks relief is past misconduct and the allegations in the Complaint simply do not allege any imminent danger of serious physical injury. See Bryan v. McCall, No. 5:15-cv-871, 2016 WL 529574, at *3 (D.S.C. Feb. 10, 2016). Accordingly, Plaintiff's motion to proceed in forma pauperis should be denied.
Plaintiff still may seek to litigate the claims in his Complaint, of course, if he pays the full filing fee. The filing fee (set by the Congress and the Judicial Conference of the United States) for a non-habeas civil action is four hundred and two dollars ($402). As a result, Plaintiff must pay the full filing fee of four hundred and two dollars ($402). If Plaintiff timely pays the filing fee, the claims in his Complaint will then be subject to review by the undersigned to determine if service of process should be authorized.
The undersigned notes that, even if Plaintiff were to pay the full filing fee, this action nevertheless would be recommended for summary dismissal as frivolous. As noted, Plaintiff brings claims against the Richland County Clerk of Court and a state court judge. Both Defendants are entitled to immunity. Judge McBride is entitled to immunity as judges have absolute immunity from a claim for damages arising out of their judicial actions unless they have acted in the complete absence of all jurisdiction. Mireles v. Waco, 502 U.S. 9, 11-12 (1991). Further, clerks of court are entitled to immunity similar to judges when performing their quasi-judicial duties. See Jarvis v. Chasanow, 448 Fed.Appx. 406 (4th Cir. 2011); Brooks v. Williamsburg Cty. Sheriff's Office, No. 1:15-cv-1074-PMD-BM, 2016 WL 1427316, at *6 (D.S.C. Apr. 11, 2016). Finally, as Plaintiff's Complaint appears to raise claims related to a pending state court action, the undersigned finds this Court should abstain from deciding his claims in this Court. See Younger v. Harris, 401 U.S. 37 (1971) (holding a federal court should not equitably interfere with state criminal proceedings); Gilliam v. Foster, 75 F.3d 881, 903 (4th Cir. 1996).
RECOMMENDATION
It is recommended that Plaintiff's motion to proceed in forma pauperis [Doc. 3] be DENIED. It is further recommended that Plaintiff be given twenty-one (21) days from the date the United States District Judge rules on this Report and Recommendation to pay the filing fee of four hundred and two dollars ($402) and that the Clerk of Court withhold entry of judgment until such time for payment expires.
If Plaintiff timely pays the filing fee, this action should be sent to the undersigned Magistrate Judge for further initial review.
If Plaintiff fails to pay the filing fee within the specified time period, it is further recommended that the Complaint be dismissed without prejudice under the three strikes rule of 28 U.S.C. § 1915(g), and that the Clerk of Court enter the required final judgment at the close of the twenty-one day period permitted for payment of the filing fee.
IT IS SO RECOMMENDED.
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
300 East Washington Street, Room 239
Greenville, South Carolina 29601
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).