Opinion
Case No. 3:19-cv-1898-TMC-MGB
08-01-2019
Hayward L. Rogers, # 278510, Plaintiff, v. Lexington County Court of General Sessions and Casey Rankin-Smith, Defendants.
ORDER
Hayward Rogers, a state prisoner proceeding pro se, is suing under 42 U.S.C. § 1983. This matter is before the Court on Rogers' motion to proceed in forma pauperis ("IFP"). (Dkt. No. 2.) Under 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2) (D.S.C.), the assigned United States Magistrate Judge is authorized to review Rogers' filings and submit a recommendation to the United States District Judge. For the following reasons, the undersigned recommends denying the motion.
BACKGROUND
This case relates to a post-conviction relief action and a new-trial motion Rogers filed in state court. (Dkt. No. 1 at 6.) He alleges that the court did not appoint him counsel and that defendant Rankin-Smith has refused to provide him evidence that can prove his innocence. (Id.) Rogers claims those actions violated his constitutional rights to due process and access to the courts. (Id.)
DISCUSSION
The Prison Litigation Reform Act bars prisoners from proceeding IFP in civil cases if they previously have had three or more cases dismissed as frivolous, malicious, or failing to state a claim upon which relief may be granted. 28 U.S.C. § 1915(g). Prisoners who have accumulated those three "strikes" must prepay the filing fee unless they are "under imminent danger of serious physical injury." Id.
Rogers is a prolific litigant. See Rogers v. Rankin, No. 3:18-cv-2905-TMC-MGB, 2018 WL 6070587, at *3 (D.S.C. Nov. 2, 2018) (summarizing the numerous cases Rogers has filed over the past eighteen years), report and recommendation adopted, 2018 WL 6065357 (D.S.C. Nov. 20, 2018). However, his lawsuits have been unsuccessful, and over the years, he has accrued at least three strikes. Id. at *5-6. Just three months ago, this Court denied Rogers IFP status in another § 1983 case and ordered that the case would be dismissed if he did not pay the filing fee. See Rogers v. S.C. Sup. Ct., No. 2:19-cv-653-TMC, 2019 WL 1585025 (D.S.C. Apr. 12, 2019); see also Rogers, 2018 WL 6065357, at *1 (reaching same result last November).
The Court should take the same course here. Rogers' strikes are all still valid, and Rogers has neither alleged nor shown that he is in imminent danger of physical harm. Consequently, § 1915(g) prevents Rogers from proceeding with this case unless he prepays the filing fee. Although Rogers has submitted a form from his prison indicating he has no money in his prison account, the undersigned recommends giving Rogers an opportunity to pay the fee before dismissing the case. See Rogers, 2018 WL 6070587, at *2 (noting this Court's practice of giving plaintiffs denied IFP status an opportunity to pay the filing fee).
CONCLUSION
For the above reasons, the undersigned recommends that: (1) the Court deny Rogers' IFP motion; 2) the Court give Rogers twenty-one days to pay the filing fee; and (3) if Rogers does not timely pay the filing fee, the Court dismiss the case without prejudice and have the Clerk enter final judgment at the end of the payment period.
IT IS SO RECOMMENDED. August 1, 2019
Charleston, South Carolina
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE
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 835
Charleston, South Carolina 29402
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).