Opinion
C. A. 8:22-cv-01994-SAL-JDA
06-28-2022
Kenneth Rivera, Plaintiff, v. Bryan P. Stirling, Director; Joel Anderson, Deputy Director; Warden Nelson, Warden; Ms. Snow, Inmate Grievance, Defendants.
REPORT AND RECOMMENDATION
JACQUELYN D. AUSTIN, UNITED STATES MAGISTRATE JUDGE
Kenneth Rivera (“Plaintiff”), proceeding pro se, brings this civil action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights. 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 (“BRCI”). 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 files this action requesting leave to proceed in forma pauperis under 28 U.S.C. § 1915. [Docs. 2; 2-1.] 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 Complaint be dismissed unless Plaintiff timely pays the full filing fee.
BACKGROUND
Plaintiff commenced this action by filing a handwritten Complaint against the abovenamed Defendants on June 20, 2022. [Doc. 1.] Plaintiff contends that, in 2020, the Wateree Unit became a Structured Living Unit (“SLU”). [Id. at 3.] Plaintiff has been housed in the SLU unit since December 2019 without a disciplinary infraction. [Id.] However, since being housed in the SLU, Plaintiff has been denied recreation, he is permitted one shower per week, his incoming legal mail is delivered only once a month, all of his meals must be eaten in his cell, and he is not afforded any rehabilitation programs. [Id.] Plaintiff has submitted requests to Defendants, without any success. [Id.] On May 6, 2022, he submitted a grievance to resolve the issue, but Defendant Snow refused to file it. [Id. at 4.] Plaintiff contends Defendants' conduct violated his rights under the First, Eighth, and Fourteenth Amendments to the United States Constitution. [Id.] For his relief, Plaintiff requests a declaratory judgment; a preliminary and permanent injunction ordering Defendants to end mass lock down and to allow him to have recreation, receive daily mail, and have showers every day; and compensatory damages in the amount of $50,000 against each Defendant and punitive damages in the amount of $50,000 against each Defendant. [Id. at 5.]
A prisoner's pleading is considered filed at the moment it is delivered to prison authorities for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 270 (1988). Accordingly, this action was filed on June 20, 2022. [See Doc. 1-2 at 1 (envelope stamped as received by the BRCI prison mailroom on June 20, 2022).]
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
Plaintiff is subject to the three-strikes rule under 28 U.S.C. § 1915(g). Plaintiff is a “frequent filer” who has filed approximately thirty-five cases in this Court. At least three 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 21-3492, 21-2407, 21-1690, 20-3356, 20-1768, 19-3126, 190718, 18-2539, 18-2301, 18-0577, 17-3337, 17-2087, 16-1202, 16-0481, 16-0206, 154482, 15-3650, 15-3318, 15-3272, 15-3196, 15-2995, 15-2347, 15-2135, 13-1234, 131233, 13-0936, 13-0553, 13-0552, 12-3214, 12-2469, 12-2318, 12-2219, 12-2218, 12 1443, 12-0233.
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.'”).
1. Rivera v. Bodiford, No. 8:15-cv-3272 (D.S.C. Jun. 15, 2016), Doc. 15 (summarily dismissing the complaint for failure to state a claim);
2. Rivera v. Stirling, No. 8:15-cv-2135 (D.S.C. Jun. 20, 2016), Doc. 16 (summarily dismissing the complaint for failure to state a claim);
3. Rivera v. Stirling, No. 8:15-cv-2995 (D.S.C. Jun. 30, 2016), Doc. 15 (summarily dismissing the complaint for failure to state a claim).
This Court previously determined that Plaintiff was subject to the PLRA's three-strikes rule in Rivera v. Stirling, No. 8:16-cv-481-JMC (D.S.C. Aug. 9, 2016), Doc. 14. In that Order, this Court explained that Plaintiff has accumulated at least three strikes pursuant to § 1915(g). Id. Further, this Court has previously denied Plaintiff the opportunity to proceed in forma pauperis in other cases based on his three strikes. See, e.g., Rivera v. McMaster, No. 8:20-cv-1768-SAL (D.S.C. Apr. 13, 2022), Doc. 23. Thus, in light of his 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.
RECOMMENDATION
It is recommended that Plaintiff's motion for leave to proceed in forma pauperis [Docs. 2; 2-1] 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.
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
250 East North Street, Suite 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).