MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE

REPORT AND RECOMMENDATION

Hayward Rogers ("Plaintiff") has filed a civil action pursuant to 42 U.S.C. § 1983 against three Defendants, challenging the validity of his 2001 convictions. (DE#1, Complaint). He is proceeding pro se and has applied to proceed in forma pauperis ("IFP"). Plaintiff is a state prisoner incarcerated at McCormick Correctional Institution located in South Carolina. Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(D.S.C.), the United States Magistrate Judge is authorized to review the record and to submit findings and recommendations to the United States District Judge. Upon careful review, including a review of Plaintiff's extensive litigation history, the Magistrate Judge recommends that the Plaintiff has accrued three strikes and should be denied permission to proceed IFP; but that Plaintiff should be given twenty-one (21) days in which to pay the filing fee, for the following reasons:

I. Relevant Law

A. The PLRA's Three Strikes Provision

The Prison Litigation Reform Act ("PLRA") provides in relevant part that:

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.

The present Plaintiff has previously been given express written warnings about the possible consequences of the PLRA's three-strike provision. See, e.g., Rogers v. Wilson et al., Case No. 2:16-cv-558-TMC-MGB (see DE#17 at 3, "Plaintiff is warned that if he continues to file pleadings that are frivolous, malicious, or fail to state a claim for which relief may be granted, he risks the accumulation of three strikes against him and the resulting denial of future requests for IFP status, absent exceptional circumstances.").

B. Relevant Case Law

In 2009, the Fourth Circuit Court of Appeals held that for a dismissal of a civil action to count as a strike, the dismissal must be "with prejudice." McLean v. United States, 566 F.3d 391, 399 (4th Cir. 2009). Therefore, some of Plaintiff's prior strikes based on dismissals without prejudice may no longer be counted as strikes. A prisoner's entire action must be dismissed on one or more of the enumerated grounds of § 1915(g) in order to count as a strike. Tolbert v. Stevenson, 635 F.3d 646 (4th Cir. 2011) ("the section speaks of prior actions dismissed as frivolous, malicious, or for failure to state a claim"); Everett v. Whaley, 504 F.App'x 245, 246 (4th Cir. 2013) (same); Rivera v. Stirling, Case No. 8:15-cv-4482-JMC-JDA, 2016 WL 4059151 (D.S.C. July 27, 2016) (same, finding that prisoner had three strikes), affirmed, 672 F.App'x 264 (4th Cir. Dec. 22, 2016), reh'g en banc denied (Jan. 18, 2017).

The Fourth Circuit Court of Appeals has further instructed that an order of summary judgment may count as a strike for purposes of the PLRA's three-strikes provision, so long as the case is being dismissed for enumerated reasons of the three-strike provision, i.e. the case is "frivolous, malicious, or fails to state a claim." Blakely v. Wards, 738 F.3d 607, 609 (4th Cir. 2013) (en banc), as amended (Oct. 22, 2013); see also Miller v. Hooks, 2015 WL 2452927, *2 n.4 (S.D.Ga. 2015) (citing Blakely and observing that "the Fourth Circuit's position in this regard is persuasive"). The Fourth Circuit Court of Appeals indicated that a district court's order of dismissal need not include language formally designating a strike. Blakely, 738 F.3d at 631, n.3 ("Whether a court rings the PLRA bell in its opinion or judgment order is immaterial, so long as the summary judgment dismissal is explicitly predicated on one of the three grounds enumerated in Section 1915(g)."). In other words, if the dismissal of the case meets the criteria of Section 1915(g), it counts as a strike, regardless of whether the judgment expressly designates a strike.

"If a prisoner has already had three cases [or appeals] dismissed as frivolous, malicious, or for failure to state a claim for which relief may be granted, the prisoner generally may not proceed IFP but rather must pay up-front all filing fees for his subsequent suits." Blakely, 738 F.3d at 609. After the Fourth Circuit's en banc decision in Blakely, district courts within this circuit have reviewed a prisoner's past § 1983 dismissals, found three valid strikes for dismissals with prejudice, and determined that the prisoner was not entitled to proceed IFP. For example, in Cabbagestalk v. SC Dept. of Corrections, Case No. 5:13-cv-3036-RMG-KDW, 2014 WL 1093094 (D.S.C. March 14, 2014), the District Court found that the prisoner had accrued "three strikes under 28 U.S.C. § 1915(g) and therefore must pay the Court's filing fee or show that he is under imminent danger of serious physical injury." The Court gave him "fifteen days from the date of the entry of this order to pay the Court's filing fee" and ordered that "if Plaintiff fails to pay the fee within this fifteen-day period, the Clerk shall dismiss this action without prejudice and without issuance and service of process." (Id.).

Similarly, in Odom v. Hailey, the District Court summarily dismissed a case because the prisoner had accrued three valid strikes under the applicable statute and was "now barred from proceeding in forma pauperis in any civil action or appeal filed while he is incarcerated or detained in any facility unless he is under imminent danger of serious physical injury." Odom v. Haley, Case No. 5:15-cv-1951-RMG-KDW, 2015 WL 3843321, *1 (D.S.C. May 29, 2015), adopted by, 2015 WL 3865814, *1 (D.S.C. June 19, 2015), affirmed as modified, 627 F.App'x 250 (4th Cir. Dec. 30, 2015).

Where a prisoner has three strikes and does not allege that he is in any imminent danger, some courts in judicial districts within the Fourth Circuit have immediately dismissed the prisoner's § 1983 action without prejudice to the prisoner's ability to re-file the complaint upon payment of the full filing fee. See, e.g., Morales v. White, 2017 WL 489430 (W.D.N.C. Feb. 6, 2017) (district court determined that prisoner had filed three previous § 1983 complaints, all of which were dismissed as frivolous, malicious or for failure to state a claim, and therefore, could no longer proceed IFP; the case was dismissed without prejudice to the prisoner's ability to refile after paying the full filing fee); Shuler v. Hargrave, 2013 WL 5962987 (W.D.N.C. Nov. 7, 2013) (same), appeal dism'd (4th Cir. Feb 7, 2014).

Other courts within the Fourth Circuit, including courts within this judicial district, have given the plaintiff a specified period of time in which to pay the filing fee and ordered that the case would be dismissed if the filing fee was not timely paid. See, e.g., Cabbagestalk, 2014 WL 1093094, *1 (ordering that case would be dismissed unless plaintiff paid filing fee within 15 days); Blakely v. White, Case No. 6:15-03782-MGL-KDW, 2015 WL 6549546 (D.S.C. Oct. 13, 2015), adopted, 2015 WL 6549172 (D.S.C. Oct. 27, 2015) (same, giving plaintiff 21 days to pay the full filing fee).

C. Discretionary Authority to Deny IFP

It should also be pointed out that regardless of whether a prisoner has formally accrued three strikes for purposes of 28 U.S.C. § 1915(g), the Fourth Circuit Court of Appeals has emphasized that federal courts also have "discretionary authority to deny IFP status to prisoners who have abused the privilege" of proceeding IFP. See Tolbert, 635 F.3d at 653 (citing Butler v. Dept. of Justice, 492 F.3d 440, 444-45 (D.C. Cir. 2007) (explaining that federal district courts have "discretionary authority to deny IFP status to prisoners who have abused the privilege").

In Tolbert, the Fourth Circuit Court of Appeals observed that such authority derives from the discretionary language of the PLRA's filing-fee provision, 28 U.S.C. § 1915(a) ("any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees or security therefor") (italic added) and from the general supervisory authority of federal courts to manage their own dockets. Id.; Blakely, 738 F.3d at 631 (Judge Duncan concurring, "Nowhere does the PLRA curtail courts' preexisting discretionary authority;" and Judge Gregory, joining Judge Mott's dissent, indicating "I write separately to clarify that courts do retain discretion under limited circumstances to deny [IFP] status under § 1915(a)" and that such discretion is appropriate when there is a "longstanding, clear pattern of abusive filings."); Butler, 492 F.3d at 445. In fact, the United States Supreme Court has indicated that because "[t]he goal of fairly dispensing justice ... is compromised when the Court is forced to devote its limited resources to the processing of repetitious and frivolous requests," courts have "a duty to deny in forma pauperis status to those individuals who have abused the system." In re Sindram, 498 U.S. 177, 179-80 (1991) (per curiam) (deeming petition to be "frivolous and abusive," and denying IFP, where plaintiff had brought the same meritless claim over a dozen times).

II. Background

This civil action is another procedurally-inappropriate effort by Plaintiff to challenge the validity of his 2001 criminal conviction by means of a civil action under 42 U.S.C. § 1983. Plaintiff has an extensive history of filing repetitive meritless lawsuits and petitions. His litigation history will be summarized as succinctly as possible. In February of 1999, the Grand Jury for Lexington County, South Carolina, indicted Plaintiff for two counts of first degree criminal sexual conduct (Indictment Nos. 1999-GS-32-815 and 1999-GS-32-818), kidnaping (Indictment No. 1999-GS-32-813), strong armed robbery (Indictment No. 1999-GS-32-814), and assault and battery with intent to kill (Indictment No. 1999-GS-32-819). (See DE#1-1 at 3-8).

Plaintiff received a jury trial, and on September 21, 2001, was convicted. The state court sentenced him to fifteen (15) years imprisonment for the strong armed robbery conviction, and life imprisonment without parole pursuant to South Carolina Code § 17-25-45(A) for each remaining conviction, to run concurrently. On August 9, 2004, the South Carolina Court of Appeals affirmed the convictions and sentences. See State v. Rogers, 361 S.C. 178, 603 S.E.2d 910 (Ct. App. 2004). While his direct appeal was pending, Plaintiff filed a federal habeas petition, which was dismissed without prejudice for lack of exhaustion of state remedies. See Case No. 8:02-cv-3820-MBS. Plaintiff then filed second, third, and fourth petitions, which were all summarily dismissed for the same reason. See Case Nos. 8:03-cv-2745-MBS; 8:03-cv-3050-MBS; 8:04-cv-512-MBS. The Fourth Circuit Court of Appeals dismissed Plaintiff's appeals regarding the third and fourth petitions. See Rogers v. McMaster, 115 F. App'x 156 (4th Cir. 2004); Rogers v. Rushton, 124 F. App'x 812 (4th Cir. 2005), cert. denied, 546 U.S. 863 (2005).

In 2004, Plaintiff filed an application for state post-conviction relief ("PCR"), raising various issues, including that a sample of his blood had been obtained by an allegedly "unlicensed" nurse. He characterized this as an "unconstitutional search and seizure." (See Lexington Cty. Court of Common Pleas, Case No. 2004-CP-32-3932). Plaintiff then filed four more federal habeas petitions (D.S.C. Case Nos. 8:05-cv-1555-MBS, 8:06-cv-2724-MBS, 8:07-cv-947-MBS, and 8:08-cv-2883-MBS), which were all summarily dismissed. The Fourth Circuit Court of Appeals dismissed Plaintiff's appeals. See Rogers v. Rushton, 2006 WL 1827999 (4th Cir. 2006); Rogers v. Rushton, 2008 WL 2611332 (4th Cir. 2008). This District Court then imposed a filing injunction, holding that:

[T]he court has carefully reviewed the entire record and concludes that a pre-filing injunction is warranted .... Petitioner's multiple habeas corpus actions filed during the pendency of his direct appeal and application for post-conviction relief are duplicative and vexatious, causing the needless expense of court resources and time. The court finds that Petitioner's habeas claims are without merit because Petitioner has again failed to exhaust his state remedies despite repeated encouragement by this court to do so.

Meanwhile, the state court held a PCR hearing and dismissed Plaintiff's 2004 application. (See Lexington Cty. Common Pleas Court Case No. 2004-CP-3203932). Plaintiff persisted in filing more repetitive PCR applications. (Case Nos. 2004-CP-3204143, 2010-CP-3203792). The state court dismissed the 2010 PCR application as untimely and entered a "Final Order of Dismissal" on January 4, 2012. Another PCR application (Case No. 2010-CP-3203237) was dismissed on April 29, 2016.

On July 6, 2012, Plaintiff filed his ninth federal habeas petition, raising twenty-three (23) issues, including alleged "actual innocence." The Magistrate Judge recommended that the "actual innocence" argument was meritless (i.e. Plaintiff had alleged that DNA evidence was "suppressed" by counsel, when in fact, the record plainly showed otherwise). On May 29, 2013, the District Court adopted the report and denied habeas relief on the merits. See Rogers v. Cartledge, Case No. 2:12-cv-1858-TMC-BHH (DE# 68, Order), 2013 WL 2338617 (D.S.C. May 29, 2013), appeal dismissed, 544 F.App'x 211 (4th Cir. October 25, 2013). Plaintiff filed a tenth habeas petition which was voluntarily dismissed after the Magistrate Judge's Report and Recommendation pointed out that the petition was unauthorized, successive, and subject to dismissal. See Case No. 2:14-cv-3745-TMC-WWD.

Plaintiff then attempted multiple times to challenge his 2001 convictions by means of civil actions under 42 U.S.C. § 1983. Such cases were summarily dismissed. See Case Nos. 3:14-cv-4271-TMC-WWD (dismissing § 1983 action against eight defendants, including assistant state attorney general, and explaining that Plaintiff could not challenge his 2001 criminal convictions by means of a § 1983 action); 2:15-cv-1886-TMC-MGB (summarily dismissing § 1983 action against state attorney general and state judge); 2:16-cv-558-TMC-MGB (dismissing repetitive attempt to challenge his 2001 convictions and sentences under § 1983). Plaintiff also attempted to bring another unauthorized successive habeas petition. See Rogers v. Cartledge, Case No. 2:16-cv-3064-TMC-MGB.

On October 26, 2018, Plaintiff filed the present case pursuant to 42 U.S.C. § 1983, once again attempting to challenge his convictions by means of an action pursuant to 42 U.S.C. § 1983.

III. Discussion

In the present case, the record reflects that the Plaintiff has already accrued numerous strikes. Upon review, it appears that at least three of those strikes remain valid after McLean. Moreover, regardless of the number of strikes, this Plaintiff has a "longstanding, clear pattern of abusive filings" that independently provides a proper basis for the Court to exercise its discretion to deny permission to proceed IFP.

A. Plaintiff has Accrued at Least Three Valid Strikes

Although some prior dismissals of Plaintiff's cases were without prejudice and thus, no longer count as valid strikes after the Fourth Circuit's decision in McLean, the record reflects numerous other dismissals with prejudice that do still count as valid strikes for this Plaintiff.

The Fourth Circuit Court of Appeals has held that where a court has granted summary judgment for the enumerated reasons of § 1915(g), the dismissal counts as a strike. Blakely, 738 F.3d at 609. In Blakely, the en banc Fourth Circuit Court of Appeals explained that "summary judgment dismissals of actions previously filed by a prisoner qualified as strikes ... so long as the summary judgment dismissal is explicitly predicated on one of those three grounds." Id. at 613 n. 3 (denying IFP status to a litigant with a history of abusive filings). The Fourth Circuit Court of Appeals emphasized that it is "the fact that an action was dismissed as frivolous, malicious, or failing to state a claim, and not the case's procedural posture at dismissal, that determines whether the dismissal constitutes a strike under Section 1915(g)." Id.; see also Straws v. S.C.D.C., 613 F.App'x 256, 2015 WL 5106782 (4th Cir. Sept. 1, 2015) (same, relying on Blakely).

The United States Supreme Court has held that the provisions of 28 U.S.C. § 1915 are mandatory. Crawford-El v. Britton, 523 U.S. 574, 596 (1998) (discussing provisions of the PLRA); and see Morales, 2017 WL 489430, *2 ("The provisions of 28 U.S.C. § 1915 are mandatory and define the degree and scope of this Court's initial review of Plaintiff's Complaint."). When enforcing the PLRA's three-strikes provision, this Court must identify three or more cases where the Court entirely dismissed with prejudice because the complaints were "frivolous, malicious, or failed to state a claim." If three cases satisfy such criteria, then Plaintiff may not proceed IFP in the present case, and this action would be subject to dismissal unless Plaintiff pays the filing fee.

Review of Plaintiff's numerous prior cases reflects that, even if some "strikes" are disregarded because they were based on dismissals without prejudice and no longer count as strikes after the 2009 decision in McLean, Plaintiff has at least three other § 1983 actions that have been entirely dismissed with prejudice because the complaints were "frivolous, malicious, or failed to state a claim." The following cases meet the PLRA's criteria and count as strikes:

1) Case No. 3:16-cv-3163-TMC-MGB, granting summary judgment and dismissing case with prejudice for enumerated reasons (i.e. fails to state a claim for relief and is frivolous); STRIKE

2) Case No. 2:16-cv-558-TMC-MGB, dismissing case with prejudice for enumerated reasons (i.e. fails to state a claim for relief and is frivolous), and expressly stating that "a § 1983 suit is an improper vehicle to obtain immediate release or a speedier release from state prison" and "Plaintiff improperly attempts to mount a collateral attack on his state conviction by masking a request for habeas relief as a § 1983 claim;" STRIKE;

3) Case No. 3:12-cv-837-MBS-BHH, dismissing case with prejudice for enumerated reason (i.e. failure to state a claim pursuant to Rule 12(b)(6)); STRIKE (affirmed by Fourth Circuit Court of Appeals on 07/09/2013, see DE#45, U.S.C. § Mandate and Order);

These cases were all dismissed with prejudice based on one or more of the enumerated grounds of the PLRA's three-strike provision. Although some cases were disposed of on summary judgment and/or did not specifically designate a "strike," the Fourth Circuit Court of Appeals emphasized in Blakely that it is the substance of the opinion and order, not the procedural posture or whether the case was explicitly "deemed a strike" in the judgment order, that controls. Id. ("whether a court rings the PLRA bell in its opinion or judgment order is immaterial, so long as the summary judgment dismissal is explicitly predicated on one of those three grounds"). Therefore, Plaintiff appears to have accrued at least three strikes. Additionally, an earlier case, Case No. 6:04-cv-22428-MBS-WMC, was dismissed with prejudice and expressly designated as a strike by this District Court.

As a three-striker, the Plaintiff is subject to 28 U.S.C. § 1915(g)'s bar to filing civil actions in forma pauperis unless he can show that he is under imminent danger of serious physical injury. Plaintiff has not alleged, and nothing in the record suggests, that he is in any imminent danger. "The mere fact that Plaintiff is in prison is insufficient to establish an imminent danger of serious physical injury." Blakely v. White, 2015 WL 6549546 (D.S.C. Oct. 13, 2015), adopted, 2015 WL 6549172 (D.S.C. Oct. 27, 2015); see also Sutton v. District Attorney's Office, of Gwinnett Superior Court, Ga., 334 F.App'x 278, 279 (11th Cir. 2009) (same). Therefore, Plaintiff is not entitled to proceed IFP in this action.

B. The Court's Discretionary Authority to Deny IFP

This Court also has discretionary authority to deny permission to proceed IFP when, as here, there is a "longstanding, clear pattern of abusive filings." Pursuant to 28 U.S.C. § 1915(a), the Fourth Circuit Court of Appeals has pointed out that federal district courts have "discretionary authority to deny IFP status to prisoners who have abused the privilege" of proceeding IFP. Tolbert, 635 F.3d at 653; Butler, 492 F.3d at 444-45. In Tolbert, the Fourth Circuit Court of Appeals explained that such authority derives from the PLRA's language that "any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees or security therefor." 28 U.S.C. § 1915(a) (italic added). Courts also have general supervisory authority to manage their own dockets. In re McDonald, 489 U.S. 180, 184 (1989); Tolbert, 635 F.3d at 653; Butler, 492 F.3d at 445; and see Blakely, 738 F.3d at 631 (Judge Gregory, joining Judge Mott's dissent, and indicating that "I write separately to clarify that courts do retain discretion under limited circumstances to deny in forma pauperis ("IFP") status under § 1915(a)" and that such discretion is appropriate when there is a "longstanding, clear pattern of abusive filings.").

Review of the record confirms that the present Plaintiff has engaged in a "longstanding, clear pattern of abusive filings." Plaintiff is a prolific filer of meritless § 1983 actions that involve repetitive improper attempts to challenge his convictions. As already discussed, Plaintiff has also filed numerous repetitive habeas petitions that have been dismissed. While those do not count toward the 3-strike rule, they do illustrate the ongoing litigiousness of this prisoner.

IV. Conclusion

Plaintiff has already accrued at least three valid strikes under the PLRA's three-strike provision, and his Complaint does not allege that he is under any imminent danger of serious physical injury. As a three-striker, Plaintiff is barred by 28 U.S.C. § 1915(g) from filing civil actions in forma pauperis. Additionally, this Court has the discretionary authority to deny permission to proceed IFP where, as here, the prisoner has a longstanding, clear pattern of abusive filings. The record plainly shows that the Plaintiff has such a history. Therefore, in addition to the statutory bar of 28 U.S.C. § 1915(g), the Court may properly exercise its discretion to deny permission to the Plaintiff to proceed IFP in this case. Consistent with other cases in this judicial district, the Plaintiff may be given a reasonable period of time, such as twenty-one (21) days, in which to pay the filing fee.

V. Recommendation

Accordingly, it is RECOMMENDED that: 1) permission for Plaintiff to proceed IFP should be denied ; 2) Plaintiff should be given twenty-one (21) days in which to pay the filing fee; 3) if Plaintiff fails to timely pay the filing fee, this case should be dismissed without prejudice and the Clerk should enter final judgment at the close of the 21-day period.

IT IS SO RECOMMENDED.

/s/_________

MARY GORDON BAKER

UNITED STATES MAGISTRATE JUDGE November 1, 2018
Charleston, South Carolina Plaintiff's attention is directed to the following important notice :

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 (4^th 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).