Opinion
C. A. 8:20-cv-1768-SAL-JDA
06-16-2020
Kenneth Syncere Rivera, a/k/a Kenneth D Rivera, a/k/a Kenneth Rivera, Plaintiff, v. Henry McMaster, Governor, Bryan Stirling, Director, Kathy Hill, H.I.R. Director, Michael Stephon, Warden, Defendants.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin United States Magistrate Judge
Kenneth Syncere Rivera (“Plaintiff”), proceeding pro se, brings this civil action 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 filed this action requesting leave to proceed in forma pauperis under 28 U.S.C. § 1915. [Doc. 2.] However, 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 Amended Complaint be dismissed unless Plaintiff timely pays the full filing fee.
BACKGROUND
Plaintiff commenced this action by filing a Complaint and attachments. [Docs. 1; 11.] By Order dated May 15, 2020, the Court notified Plaintiff that his Complaint was subject to summary dismissal, but authorized him to file an amended complaint to cure the pleading deficiencies identified by the Court in its Order. [Doc. 8.] The Court further notified Plaintiff that he was subject to the PLRA's three strikes rule and that “[a]ny amended complaint filed by Plaintiff will be reviewed to determine whether Plaintiff's allegations satisfy the ‘imminent danger of serious physical injury' standard of the PLRA.” [Id. at 1 n.1.] Plaintiff has filed an Amended Complaint, which was entered on the docket on June 4, 2020. [Doc. 10.]
Plaintiff makes the following allegations in his Amended Complaint. Plaintiff alleges that Defendants have subjected him to cruel and unusual punishment in violation of the Eighth Amendment and the Equal Protection Clause of the Fourteenth Amendment. [Id. 1 at 7.] Plaintiff alleges that the World Health Organization (the “WHO”) declared the coronavirus a global pandemic on March 11, 2020. [Id. at 3.] Plaintiff alleges that public health officials have been warning about the spread of the virus in jails and prisons where physical distancing is impossible. [Id.] Plaintiff alleges he has submitted numerous Request to Staff Members (“RTSM”) and letters to Defendants about the seriousness of the pandemic in prison. [Id.]
Plaintiff alleges that, in March 2020, Defendant Stephon reportedly came in contact with COVID-19 and is recovering from it. [Id.] Plaintiff alleges that Defendant Stephon returned to work on April 10, 2020, and came to the law library where Plaintiff worked and explained to Plaintiff the seriousness of the pandemic. [Id. at 4.]
Plaintiff alleges Defendant Stirling has held several press conferences about the coronavirus in prison and the steps SCDC is taking, but that the information is lies. [Id.] Plaintiff alleges that, although Defendant Stirling has stated SCDC is protecting inmates during this time, prisoners are not practicing social distancing and are not issued gloves, hand sanitizer, or disinfectant. [Id.] Plaintiff alleges that several employees and inmates in SCDC prisons have come into contact with the virus and have died and that several institutions are on lockdown. [Id.] Plaintiff alleges that, on April 23, 2020, a staff member, Sergeant Martin, on Plaintiff's housing unit was escorted out of the institution because he tested positive for the coronavirus and that he worked for two days on Plaintiff's unit without a face mask, putting Plaintiff at risk. [Id.] Plaintiff alleges he filed an emergency grievance on April 23, 2020, but has not received any response. [Id.]
Plaintiff alleges that, according to the Marshall Project, at least 25, 239 people in state and federal prisons have tested positive for COVID-19 as of May 13, 2020. [Id. at 5.] Plaintiff alleges that SCDC staff have refused to test every prisoner for the virus in violation of the Centers for Disease Control and Prevention (“CDC”) guidelines. [Id.] Plaintiff alleges that he sent letters to Defendants on April 27, 2020, and May 12, 2020. [Id.]
Plaintiff alleges an entire dorm was recently placed on lockdown due to inmates testing positive for the coronavirus. [Id.] Plaintiff alleges he has asked medical staff several times to test him. [Id.] Plaintiff alleges that, although he does not have the coronavirus, the CDC has reported that prisoners infected with COVID-19 are not showing symptoms. [Id.] Plaintiff alleges that, since March, more than 370 prisoners have died from coronavirus-related causes. [Id. at 6.] Plaintiff alleges that, as of May 1, eight of the ten largest outbreaks of COVID-19 in the United States have been in prisons and jails. [Id.] As a result, Plaintiff contends, his life is at danger and Defendants are not doing anything. [Id.]
For his relief, Plaintiff seeks declaratory relief, finding his rights have been violated; a preliminary and permanent injunction ordering Defendants to test him and every inmate for COVID-19, follow CDC guidelines, and release him until the pandemic is over; and an award of compensatory and punitive damages. [Id. at 7-8.]
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. McLean v. United States, 566 F.3d 391, 393 (4th Cir. 2009). 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 Act's ‘three strikes' provision requires that the prisoner demonstrate imminent danger of serious physical injury in order to proceed without prepayment of fees.” McLean, 566 F.3d at 393-94 (citing 28 U.S.C. § 1915(g)).
In evaluating whether a prior dismissal for failure to state a claim qualifies as a “strike” under § 1915(g), the court must determine whether the prior dismissal was “one that constituted an adjudication on the merits and prejudiced the filing of a subsequent complaint with the same allegations.” McLean, 566 F.3d at 396 (noting, by contrast, that a dismissal without prejudice for failure to state a claim is not an adjudication on the merits).
The PLRA's three strikes rule was enacted to bar prisoners, such as Plaintiff, who have filed prior frivolous litigation in a federal court from pursuing certain types of federal civil litigation without prepayment of the filing fee. Id. 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
Plaintiff is subject to the “three strikes” rule under 28 U.S.C. § 1915(g). Plaintiff is a “frequent filer” who has filed numerous frivolous cases in this Court. The undersigned takes judicial notice of the Order filed in Rivera v. Stirling, No. 8:16-481-JMC (D.S.C. Aug. 9, 2016), ECF No. 14. In that Order, this Court explained that Plaintiff has accumulated at least three strikes pursuant to § 1915(g). Id.; 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 three “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.'” Riches v. Harrelson, No. 6:08-cv-0685-MBS, 2008 WL 1744603, at *3 (D.S.C. Apr. 10, 2008); see also 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 . . . must be real, and not merely speculative or hypothetical.”). “In order to make a valid allegation of imminent danger of physical harm, the danger must exist at the time the complaint is filed.” Merriweather v. Reynolds, 586 F.Supp.2d 548, 552 (D.S.C. 2008).
Here, Plaintiff fails to allege facts showing that he is in imminent danger. Critically, Plaintiff does not allege that he has contracted the coronavirus or that he has exhibited symptoms of the coronavirus. Further, Plaintiff also does not plausibly allege that he is in imminent danger of contracting the coronavirus. Instead, Plaintiff alleges only that there is more that Defendants could do to protect him. Accordingly, Plaintiff's allegations “fall short of claiming that [he] suffers from a specific and particularized risk of imminent physical harm.” Johnson v. Wilcher, No. 4:20-cv-089, 2020 WL 2064935, at *2 (S.D. Ga. Apr. 28, 2020).
The Court notes that several courts have concluded that prisoners' allegations concerning the risk of contracting COVID-19 in prison were insufficient to satisfy the imminent physical harm exception to the PLRA's three strikes provision. See, e.g., Boddie v. Franklin Cty., Corr. Ctr. I, No. 2:20-cv-1179, 2020 WL 2182987, at *2 (S.D. Ohio May 6, 2020) (Plaintiff “offers no reason to believe that he needs to be treated to prevent a COVID-19 infection or that such a lack of preventative treatment constitutes a ‘real and proximate' danger that currently exists.”); Wilcher, 2020 WL 2064935, at *2 (noting plaintiff's allegations-that defendant allowed prison staff to enter and exit prison facility, rather than being housed on the premises, placing inmates in danger of being exposed to the novel coronavirus; that plaintiff's risk of contracting the virus was heightened by his proximity to other inmates that have tested positive for the disease; and that defendant failed to provide masks, gloves, disinfecting products-all fail to establish a specific and particularized risk of imminent physical harm); Littlejohn v. Whitmer, No. 2:20-cv-39, 2020 WL 1685310, at *3 (W.D. Mich. Apr. 7, 2020) (“The mere fact that Plaintiff is currently a prisoner within the [Michigan Department of Corrections] does not mean that he is at a high risk of contracting COVID-19....Plaintiff has failed to allege facts showing that he is at any greater risk of contracting COVID-19 than the general public.”); Jones v. Douglas Cty. Jail, No. 20-cv-3091-SAC, 2020 WL 1492703, at *1 (D. Kan. Mar. 27, 2020) (explaining plaintiff's allegations “that Defendants are acting with deliberate indifference by refusing to respond to grievances against medical staff who are refusing to give masks to inmates to prevent exposure to Covid-19” and “that another inmate has been treated at a hospital where there have been confirmed Covid-19 cases” were insufficient to establish an imminent danger of serious physical injury). Particularly in the absence of any allegations that inmates at Plaintiff's prison institution have contracted or are likely to contract the coronavirus, the undersigned cannot conclude that Plaintiff has adequately alleged that he is in imminent danger. See United States v. Gadson, No. 5:00-cr-917-CMC, 2020 WL 2079100, at *4 (D.S.C. Apr. 30, 2020).
The Court notes as well that, in Nethercutt v. Johnson, No. 1:20-cv-944-RBH-SVH, 2020 WL 3001785, at *4 (D.S.C. Apr. 28, 2020), Report and Recommendation adopted by 2020 WL 2992533 (D.S.C. June 4, 2020), the Court dismissed, for failure to state a claim, a Plaintiff's claim that prison officials were failing to follow the CDC guidelines in response to COVID-19, exposing him to risk of contracting the virus. The Court explained:
[w]ith regard to [Plaintiff's] allegations that [prison officials] failed to follow safety guidelines pursuant to COVID-19, Plaintiff has failed to show he has suffered an injury at this stage. Plaintiff has not indicated that he nor any fellow inmate has been diagnosed with COVID-19. Therefore, at this stage, Plaintiff is at no greater risk for contracting the disease [than] a member of the general public.Id.
The Court notes that, according to data published by SCDC, no inmates at Broad River, where Plaintiff is incarcerated, have tested positive for COVID-19 as of June 14, 2020. See http://www.doc.sc.gov/covid.html (last visited Jun. 14, 2020).
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. Effective May 1, 2013, the filing fee (set by the Congress and the Judicial Conference of the United States) for a non-habeas civil action is four hundred dollars ($400). As a result, Plaintiff must pay the full filing fee of four hundred dollars ($400). 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.
RECOMMENDATION
In sum, it is recommended that Plaintiff's motion to proceed in forma pauperis [Doc. 2] 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 dollars ($400) 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 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).