Opinion
C/A 4:24-1771-TMC-TER
04-17-2024
Henry J. Dukes, # 347234, a/k/a Henry Jermaine Dukes, Plaintiff, v. Sean Addison, Conway Police Department, Defendants.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE
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 prioroccasions, 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 a 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. The following is an accounting of dismissals of suits for failure to state a claim, which count as strikes pursuant to Lomax. The language of the statute implicates such is a mandatory function of screening prisoner actions.
There does not appear to be a time limit on the accumulation of strikes. See Gerald v. Mohr, 2020 WL 489230, at *1 (S.D. Ohio Jan. 30, 2020)(addressing Plaintiff's objections of distance in time of actions accumulated); Polanco v. Hopkins, 510 F.3d 152, 155(2d Cir. 2007)(noting dismissal counts back to 1987); Lewis v. King Cnty, 2019 WL 4454422, at *1 (W.D. Wash. June 13, 2019), adopted by 2019 WL 3058974 (counting dismissals in 2002 and 2010); Peeples v. Conley, 2023 WL 312784, at *1(S.D. Ohio Jan. 19, 2023)(addressing Plaintiff's arguments regarding three strikes and being imprisoned for 35 years and finding “there is no time limit on Section 1915(g)'s three strikes provision”); Joseph v. Johnson, 2021 WL 4430269, at *3 (D.N.M. Sept. 27, 2021), reconsideration denied, 2021 WL 5937588 (D.N.M. Dec. 16, 2021), appeal dismissed, 2022 WL 1044914 (10th Cir. Mar. 4, 2022)(“there is no time limit in Section 1915(g)”).
4:09-cv-00576-HFF
In 2009, Plaintiff's § 1983 action, filed while detained in the J. Reuben Long Detention Center, against two of the same Defendants in the instant action and against an additional police employee, regarding allegations of being negatively portrayed by the media, was summarily dismissed for failure to state a claim upon which relief may be granted under § 1915(e)(2)(B)(ii). Dukes v. Addison, 4:09-cv-00576-HFF.
No. 4:09-cv-00690-HFF
In 2009, Plaintiff's § 1983 action, filed while detained in the J. Reuben Long Detention Center, against the city of Conway and a judge, regarding liberally construed claims of false arrest and malicious prosecution, was summarily dismissed for failure to state a claim upon which relief may be granted under § 1915(e)(2)(B)(ii). Dukes v. Municipality of Conway, No. 4:09-cv-00690-HFF.
4:11-cv-00539-HFF
In 2011, Plaintiff's § 1983 action, filed while detained in the J. Reuben Long Detention Center, against the detention center and its director, regarding allegations he was denied “spiritual guidance” from December 13, 2007 until May 29, 2008, was summarily dismissed for failure to state a claim upon which relief may be granted. The court noted Plaintiff failed to show he suffered a constitutional infraction because the inability to meet with a religious advisor standing alone did not demonstrate Plaintiff was denied a reasonable opportunity to exercise his faith, the detention center was a building and not a person, and Defendant Fox had no personal involvement. Dukes v. J. Reuben Long Detention Center, No. 4:11-cv-00539-HFF (ECF No. 15).
Plaintiff has received at least three dismissals for failure to state a claim, thus accumulating “three strikes.” See e.g. Ackbar v. Jones, 7:20-cv-825-RMG, No. 20-6880 (4th Cir. Feb 26, 2021, ECF No. 13)(rescinding prior grant of in forma pauperis and counting prior actions dismissed for failure to state a claim); Pitts v. South Carolina, 65 F.4th 141 (4th Cir. 2023)(holding a district court may not contemporaneously rule at the time of a summary dismissal that such dismissal counts as a strike in the future; instead, the fourth action is where the court is to look backwards and evaluate the prior suits).
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 (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 can not allege imminent danger of serious physical injury based on the alleged claims presented. Plaintiff's Complaint is again an attempt to attack his arrest warrant and Plaintiff states the event giving rise to his claim is November 3, 2007. (ECF No. 1 at 5). The “imminent danger” must “exist contemporaneously when the action is filed,” Hall v. United States, 44 F.4th 218, 224 (4th Cir. 2022), as “Congress intended that a three-strikes prisoner have opportunity to ask the court for its aid in addressing a danger that is close at hand, not a past infraction.” Meyers v. Comm'r of Soc. Sec. Admin., 801 Fed.Appx. 90, 96 (4th Cir. 2020)(prisoner case). Plaintiff's allegations do not meet the imminent danger requirement of § 1915(g).
Therefore, to proceed with his Complaint, Plaintiff must pay the full filing fee.
Recommendation
Accordingly, it is recommended that Plaintiff's 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 $55 administrative fee for a total fee due of $405.
Effective May 1, 2013, the Judicial Conference added an administrative fee of $50 to the filing fee of $350; such fee was increased to $55 in December 2023. The $55 administrative fee is not applicable to in forma pauperis cases but would apply to Plaintiff here.
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 $405 filing fee, in which event this matter can be returned to the undersigned magistrate judge to conduct a review of Plaintiff's Complaint.
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. Plaintiff's Complaint in the instant action appears to be subject to summary dismissal even if Plaintiff pays the fee.
However, if Plaintiff fails to pay the full $405 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 action be dismissed without prejudice and without issuance of service of process.
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).