Opinion
C. A. 6:21-cv-03142-JD-KFM
06-29-2022
Gary Steven Scott, Plaintiff, v. Lieutenant Woods, Harvey Hall, Lieutenant Housey, Lieutenant Brewton, and Mrs. Francis, Defendants.
REPORT OF MAGISTRATE JUDGE
KEVIN F. MCDONALD, UNITED STATES MAGISTRATE JUDGE
This matter is before the court on a motion to dismiss filed by the defendants (doc. 52). Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(e) (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.
PROCEDURAL HISTORY
The plaintiff's complaint was entered on the docket on September 27, 2021 (doc. 1). On October 25, 2021, the plaintiff filed a motion to proceed in forma pauperis, alleging that he did not have sufficient funds to prepay the filing fee (doc. 8). Based upon the motion and the plaintiff's assertion in his complaint that he did not have any prior cases dismissed based upon 28 U.S.C. § 1915(g), the plaintiff's motion was granted on November 12, 2021 (doc. 16). On that same date, the undersigned also issued an order informing the plaintiff that his complaint was subject to dismissal as drafted and providing him with time to file an amended complaint to correct the deficiencies noted in the order (doc. 15). After the plaintiff failed to file an amended complaint within the time provided, on December 15, 2021, a report and recommendation was issued recommending that the case be dismissed (doc. 21). Almost a month after the deadline to respond passed, the plaintiff filed an amended complaint (doc. 23), and the court vacated the prior report and recommendation (doc. 27). Upon review of the plaintiff's amended complaint, the undersigned issued a report and recommendation on January 11, 2022, recommending that this matter be dismissed for failure to state a claim (doc. 32). On April 21, 2022, the Honorable Joseph Dawson, III, United States District Judge, adopted the recommendation in part, dismissing all of the plaintiff's claims other than those involving inadequate lighting and electricity (doc. 38). On April 22, 2022, pursuant to Judge Dawson's order, an order was issued serving the plaintiff's inadequate lighting and electricity claim on the defendants (doc. 41). On May 13, 2022, Otto Edworth Liipfert, III, Esquire, filed a notice of appearance on the defendants' behalf (doc. 46). On June 3, 2022, the defendants filed a motion to dismiss (doc. 52). On June 6, 2022, the court issued an order in accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising the plaintiff of the summary judgment/dismissal procedure and of the possible consequences if he failed to adequately respond to the motion (doc. 54). On June 16, 2022, the plaintiff responded to the defendants' motion (doc. 56), to which the defendants replied on June 23, 2022 (doc. 59). Thus, the defendants' motion to dismiss is now ripe for review.
ALLEGATIONS
The plaintiff, a state prisoner in the custody of the South Carolina Department of Corrections (“SCDC”) and located at Ridgeland Correctional Institution (“Ridgeland”), brings this action alleging that the defendants have violated his constitutional rights (doc. 23). The plaintiff contends that his Eighth Amendment rights have been violated by the defendants (id. at 5). The plaintiff alleges that on April 23, 2021, Lt. Woods asked the plaintiff for his bottom bunk pass, but the plaintiff indicated that the pass was kept in medical (id. at 6, 7). After responding to Lt. Woods, the plaintiff went back to his telephone call with his fiance (id. at 7, 12). Lt. Woods then entered the plaintiff's cell and told him that he was moving to a different cell (id. at 7). The cell to which Lt. Woods took the plaintiff did not have electrical outlets or overhead lighting (id.). The plaintiff told Lt. Woods that the cell was not “serviceable,” but she did not change his cell placement (id.).
On April 24, 2021, the plaintiff informed Lt. Brewton that his cell did not have overhead lighting or electrical outlets (id. at 8). Lt. Brewton indicated that a work order had been sent to maintenance and Lt. Brewton would not submit an additional work order (id.). After the plaintiff “won” a grievance regarding his cell not having overhead lights or working electrical outlets, the plaintiff alleges that Lt. Housey violated his rights by placing the plaintiff in another cell without overhead lights or electrical outlets (id. at 8-9). The plaintiff contends that the cell did not accommodate his serious medical need of urine dripping in his undergarment, which affected his religion as a Muslim (id. at 9). The plaintiff further contends that he requested a cell that accommodated his serious medical need so he could complete legal work, but Lt. Housey told him that his cell placement would not be changed and told the plaintiff to enter the cell (id.).
The plaintiff next informed Mrs. Francis that he was being held in an “unserviceable” cell, but Mrs. Francis violated the plaintiff's rights by telling the plaintiff that she did not deal with maintenance requests (id. at 10). The plaintiff requested that Mr. Hall fix the overhead light and wall socket in two of his “unserviceable” cells, but Mr. Hall indicated the first time that he had already fixed the light and he would not be fixing it again and the second time indicated that he could not stop what he was doing to fix the plaintiff's light (id. at 10-11).
For injuries, the plaintiff alleges increased anxiety and depression as well as mood swings and worsened vision (id. at 12). For relief, the plaintiff seeks money damages (id. at 12).
APPLICABLE LAW AND ANALYSIS
This complaint is filed pursuant to 42 U.S.C. § 1983, which “‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)). A civil action under § 1983 “creates a private right of action to vindicate violations of ‘rights, privileges, or immunities secured by the Constitution and laws' of the United States.” Rehberg v. Paulk, 566 U.S. 356, 361 (2012). To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
“The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint.” Williams v. Preiss-Wal Pat III, LLC, 17 F.Supp.3d 528, 531 (D.S.C. 2014) (quoting Edwards v. City of Goldsboro, 178 F.3d 231,243 (4th Cir. 1999)). Rule 8(a) sets forth a liberal pleading standard, which requires only a “‘short and plain statement of the claim showing the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what . . . the claim is and the grounds upon which it rests.'” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41,47 (1957)). “In assessing the sufficiency of a complaint, [the court] assume[s] as true all its well-pleaded facts and draw[s] all reasonable inferences in favor of the plaintiff.” Nanni v. Aberdeen Marketplace, Inc., 878 F.3d 447, 452 (4th Cir. 2017) (citing Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009)). “[T]he facts alleged ‘must be enough to raise a right to relief above the speculative level' and must provide ‘enough facts to state a claim to relief that is plausible on its face.'” Robinson v. Am. Honda Motor Co., Inc., 551 F.3d 218, 222 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555, 570). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). The court must liberally construe pro se complaints to allow the development of a potentially meritorious case, Hughes v. Rowe, 449 U.S. 5, 9 (1980), and such pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.1978).
The defendants move to dismiss this case, arguing (1) that the plaintiff's in forma pauperis status should be revoked based upon the three strikes provision in 28 U.S.C. § 1915(g), as well as (2) that the plaintiff's amended complaint should be dismissed based upon qualified immunity (doc. 52). The court agrees that the plaintiff has accrued at least three strikes pursuant to § 1915(g) and that the plaintiff's in forma pauperis status should be revoked.
As noted above, on October 25, 2021, the plaintiff filed a motion seeking leave to proceed in forma pauperis under 28 U.S.C. § 1915 (doc. 8). Based upon the representations in the motion as well as the plaintiff's assertion in his complaint that he had not had any prior cases dismissed under the three-strikes rule (docs. 1 at 14-17; 8), the plaintiff's motion was granted on November 12, 2021 (doc. 16). The defendants argue, however, that the plaintiff has accrued three prior dismissals that count as strikes under § 1915 and assert that based upon the strikes, his in forma pauperis status should be revoked and the plaintiff should be required to pay the full filing fee (doc. 52).
The “three-strikes” rule of the Prisoner Litigation Reform Act (“PLRA”) provides that:
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. When defendants challenge a plaintiff's in forma pauperis status under § 1915(g), they bear the initial burden of showing through documentary evidence that a plaintiff has three prior strikes. Thompson v. Sexton, C. A. No. 7:20-cv-00454, 2022 WL 1124205, at *2 (W.D. Va. Apr. 14, 2022) (citing Harris v. Harris, 935 F.3d 670, 673 (9th Cir. 2019)). If the defendants satisfy this initial burden, the burden shifts to the plaintiff to persuade the court that § 1915(g) does not apply. Id.
Here, the defendants have carried their burden. They have identified four cases that they argue should be counted as strikes and have attached copies of the applicable orders to their motion (docs. 52-1 at 8-9; 52-2; 53-3 (citing Scott v. Stirling, etal., C. A. No. 6:20-cv-03343-RMG, 2020 WL 7711350 (D.S.C. Dec. 29, 2020) (dismissed for failure to state a claim); Scott v. S.C. Dep't of Corrs. et al., C. A. No. 6:14-cv-04175-RMG (D.S.C. Jan. 16, 2015) (dismissed for failure to state a claim); Scottv. McCall, etal, C. A. No. 6:14-cv-02750-RMG, 2015 WL 3649773 (D.S.C. June 11,2015), aff'd 621 Fed.Appx. 215 (4th Cir. 2015); Scott v. Condon, et al., C. A. No. 4:01-cv-02901-CWH, at doc. 6 (D.S.C. Oct. 28, 2003) (dismissed as frivolous and specifically designated a “strike”)). One of the dismissals identified as a strike by the defendants, however, does not appear to fall under the statute, because the matter was not dismissed on the pleadings - instead summary judgment was granted. See Scott v. McCall, et al., 2015 WL 3649773; see also Thompson, 2022 WL 1124205, at *2 (noting that the dismissals under § 1915(g) must be of “actions” not “claims”). Nonetheless, because the remainder of the cases identified by the defendants were dismissed pursuant to 28 U.S.C. § 1915(e) for failure to state a claim as well as one that was specifically dismissed and designated as a strike under 28 U.S.C. § 1915(g) - and the court's records reflect an additional case where the plaintiff's complaint was dismissed and designated as a strike under § 1915(g) - the burden shifts to the plaintiff to persuade the court that § 1915(g) does not apply. See Scott v. Stirling, et al., C. A. No. 6:20-cv-03343-RMG, 2020 WL 7711350 (D.S.C. Dec. 29, 2020) (dismissed for failure to state a claim); Scott v. S.C. Dep't of Corrs. et al., C. A. No. 6:14-cv-04175-RMG (D.S.C. Jan. 16, 2015) (dismissed for failure to state a claim); Scott v. Condon, et al., C. A. No. 4:01-cv-02901-CWH, at doc. 6 (D.S.C. Oct. 28, 2003) (dismissed as frivolous and specifically designated a “strike”); Scott v. Abraham, et al., C. A. No. 9:01-cv-02147-CWH, at doc. 70 (D.S.C. Oct. 24, 2003) (dismissed and specifically designated a “strike”).
Phillips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (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 ‘[t]he most frequent use of judicial notice . . . is in noticing the content of court records.'”).
The plaintiff, in response to the defendants' motion to dismiss, asserts that, at best, he has only accrued one strike pursuant to § 1915(g) and that even if he had accrued three strikes, he should be able to proceed in this action because withdrawals from his prisoner trust account have paid the filing fee in most of his prior cases (doc. 56 at 6-7). The court finds the plaintiff's assertions unavailing. First, the plaintiff has not presented any argument regarding his prior accrued strikes, conceding that he has one strike that he forgot about due to its age (id.). Additionally, proceeding in forma pauperis waives the requirement that a filing fee be prepaid, not that the fee be paid in general. See 28 U.S.C. § 1915. As such, the fact that the plaintiff's prisoner trust account has been deducted over time for prior filing fees does not negate that the plaintiff proceeded in forma pauperis in those cases and was not required to pay the full filing fee at the time the case was filed. See Rankins v. Carvajal, C. A. No. 5:21-cv-00453, 2022 WL 1261222, at *5 (S.D. W.Va. Feb. 9, 2022) (noting that an “inmate subject to the three-strike rule must pay the filing fee and the administrative fee at the time he initiates the action” (internal citations omitted)). Indeed, a plaintiff proceeding in forma pauperis is only responsible for the filing fee of $350.00, not the administrative fee of $52.00 applicable in any action where a plaintiff is not proceeding in forma pauperis. See 28 U.S.C. § 1914. In light of the foregoing, the plaintiff has received more than three dismissals that count as strikes, including multiple dismissals for frivolousness. 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's in forma pauperis status should be vacated, as requested by the defendants in their motion to dismiss, unless he has plausibly alleged that he is under “imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).
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. Johnson v. Warner, 200 Fed.Appx. 270, 272 (4th Cir. 2006) (unpublished per curiam opinion). As outlined above, and argued by the defendants, the allegations in the plaintiff's complaint do not meet the imminent danger requirements of § 1915(g) (see doc. 1). For example, the plaintiff's complaint alleges that the complained-of conditions of confinement took place from April 2021 until August 2021, meaning that at the time he filed the instant matter, the condition no longer existed (see doc. 1 at 9). Further, the plaintiff did not argue in his response to the defendants' motion that he was under imminent danger of serious physical injury (doc. 56 at 6-7). Accordingly, the undersigned recommends that the defendants' motion to dismiss be granted to the extent it seeks to vacate the plaintiff's in forma pauperis status because the plaintiff has accumulated three strikes under § 1915(g).
CONCLUSION AND RECOMMENDATION
Now, therefore, based upon the foregoing, IT IS HEREBY RECOMMENDED that the defendants' motion to dismiss (doc. 52) be granted in part. Specifically, IT IS RECOMMENDED that the defendants' request to vacate the plaintiff's in forma pauperis status be granted and that the plaintiff be provided twenty-one (21) days to pay the full filing fee of $402.00 or the case will be dismissed. Furthermore, IT IS RECOMMENDED that the remainder of the defendants' motion be denied with leave to refile should the plaintiff pay the filing fee. Should the United States District Judge assigned to this case adopt this recommendation, the order granting the plaintiff's motion to proceed in forma pauperis (doc. 16), entered on November 12, 2021, should be vacated, and the plaintiff's motion to proceed in forma pauperis (doc. 8) should be denied.
IT IS SO RECOMMENDED.
The attention of the parties 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 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).