Opinion
C. A. 6:23-cv-06927-SAL-KFM
02-08-2024
Leo Vincent Poole, Plaintiff, v. Jack J. Joiner, Hugh J. Hurwitz, J. Gordon, Defendants.
REPORT OF MAGISTRATE JUDGE
KEVIN F. MCDONALD, UNITED STATES MAGISTRATE JUDGE
This matter is before the court on a motion to proceed in forma pauperis filed by the plaintiff (doc. 2). This is an action filed pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1999) by the plaintiff (who is currently a state prisoner incarcerated in Florida) regarding his time as a federal prisoner, alleging violations of his constitutional rights (doc. 1). Pursuant to the provisions of 28 U.S.C. § 636(b), and Local Civil Rule 73.02(B)(2) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in this case and submit findings and recommendations to the district court.
ALLEGATIONS
This is a Bivens action filed by the plaintiff, who appears to be a state prisoner in Florida (doc. 1). The plaintiff appears to seek damages relating to his incarceration in Estill Federal Correctional Institution (“FCI Estill”) in 2018 (id.). The plaintiff alleges that he was arrested on March 9, 2018, and was later sentenced to eighteen months' imprisonment for violating his supervised release (id. at 13-14). The plaintiff was also charged in state court for the incident leading to his supervised release violation and a detainer was placed on the plaintiff by the State of Florida (id. at 14). The plaintiff was transferred to FCI Estill, but was told that he could not be placed in a halfway house due to the detainer (id. at 14-15). The plaintiff asked for help with the detainer process in November 2018, but was unable to sign the documents in December 2018 although they were available (id. at 15-16). After the plaintiff filed complaints in Florida and South Carolina seeking assistance with the detainer paperwork, he was finally allowed to fill out the paperwork in February 2019 (id. at 16). The plaintiff alleges that although the detainer had expired without Florida filing a motion to continue, when the plaintiff was released from FCI Estill, Florida officers extradited the plaintiff to Florida (id. at 16-17).
After being incarcerated in Florida, the plaintiff alleges that it took a long time for him to obtain a bond in Florida (id. at 17-18). The plaintiff contends that he was later arrested on new criminal charges after being harassed and targeted by the Boynton Beach Police Department (id. at 18). The plaintiff also contends that he has been attacked while incarcerated in Florida, which caused him injuries (id. at 18-19). The plaintiff seeks damages for negligence (id. at 20-21), intentional infliction of emotional distress (id. at 21-22), and based on violations of the Interstate Agreement on Detainers Act (id. at 22-24). For relief, the plaintiff seeks money damages (id. at 6, 24-25).
APPLICABLE LAW & ANALYSIS
As a pro se litigant, the plaintiff's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). 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 cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990). Further, the plaintiff is a prisoner under the definition of 28 U.S.C. § 1915A(c), and “seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). Thus, even if the plaintiff had prepaid the full filing fee, this Court is charged with screening the plaintiff's lawsuit to identify cognizable claims or to dismiss the complaint if (1) it is frivolous, malicious, or fails to state a claim upon which relief may be granted, or (2) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A.
As noted above, the plaintiff has filed a motion for leave to proceed in forma pauperis under 28 U.S.C. § 1915 (doc. 2). However, the plaintiff is subject to the “three-strikes” rule of the Prisoner Litigation Reform Act (“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 v. Ortiz-Marquez, 140 S.Ct. 1721, 1725 (2020). “A dismissal of a suit for failure to state a claim counts as a strike, whether or not with prejudice.” Id. at 1727.
Here, the plaintiff has three actions that were dismissed under grounds that qualify as strikes under 28 U.S.C. § 1915(g). See Poole v. Autiello, et al., C/A No. 9:23-cv-81033-KMW, at doc. 16 (S.D. Fla. Jan. 22, 2024) (dismissing case for failure to state a claim); Poole v. Unknown Warden, et al., C/A No. 1:23-cv-20290-BB, 2023 WL 1331272 (S.D. Fla. Jan. 30, 2023) (dismissing case for failure to state a claim); Poole v. Gordon, C/A No. 6:23-cv-01214-SAL, 2023 WL 6541297 (D.S.C. Oct. 6, 2023) (dismissing case for failure to state a claim). Accordingly, the plaintiff has received at least three dismissals which count as strikes. The three-strikes rule was enacted to bar prisoners, such as the plaintiff, from pursuing certain types of federal civil litigation without prepayment of the filing fee. As such, the plaintiff is barred from proceeding in this action in forma pauperis unless he has plausibly alleged that he is under “imminent danger of serious physical injury.” 28 U.S.C. § 1915(g); see Hall v. United States of America, 44 F.4th 218, 227-29 (4th Cir. 2022) (noting that allegations of imminent harm based upon delayed or denied medical care can be dismissed when the allegations are “wholly conclusory and lack some basis in the record or complaint”). The imminent danger exception to § 1915(g)'s “three strikes” rule is to be narrowly construed and a plaintiff must allege imminent danger at the time the complaint was filed, not that the plaintiff has faced imminent danger in the past. Johnson v. Warner, 200 Fed.Appx. 270, 272 (4th Cir. 2006) (unpublished per curiam opinion). Here, the plaintiff has not alleged any imminent danger of harm. Indeed, the plaintiff's complaint involves events surrounding a detainer in 2018 and an alleged attack that occurred in 2020 while the plaintiff was incarcerated in Florida - well before this action was filed - meaning they cannot provide a basis for imminent danger to excuse the plaintiff's status as a three-strikes prisoner. As such, the plaintiff's allegations fail to allege that he was in imminent danger of harm at the time this action was filed; thus, the undersigned recommends that the plaintiff's motion to proceed in forma pauperis be denied.
RECOMMENDATION
Now, therefore, based upon the foregoing, IT IS RECOMMENDED that the plaintiff's motion to proceed in forma pauperis (doc. 2) be denied. Should the United States District Judge adopt this recommendation, it is recommended that the plaintiff be provided twenty-one (21) days to pay the filing fee or the case will be dismissed.
IT IS SO RECOMMENDED.
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 committees 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
250 East North Street, Room 2300
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).