Opinion
C. A. 4:24-3238-RMG-TER
05-30-2024
Dominick Alexander Brown, #589190, Plaintiff, v. Sheriff Al Cannon Detention Center, Charleston County Sheriff's Office, Sgt. Y. Gladden, Major A. Grant, Chief Patrick Morris, Sheriff Kristin Griaziano, Defendants.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge.
This is a civil action filed by a pretrial detainee, proceeding pro se. Pursuant to 28 U.S.C. § 636(b)(1) and District of South Carolina Local Civil Rule 73.02(B)(2)(e), the undersigned is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the district court.
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of the pro se complaint filed in this case. This review has been conducted pursuant to the procedural provisions of 28 U.S.C. §§ 1915, 1915A, and the Prison Litigation Reform Act of 1996, and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir.1995) (en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir.1983).
This court is required to liberally construe pro se complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Such pro se complaints are held to a less stringent standard than those drafted by attorneys. Id.; Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Even under this less stringent standard, however, the pro se complaint is subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which plaintiff could prevail, it should do so, but a district court may not rewrite a complaint to include claims that were never presented, construct the plaintiff's legal arguments for him, or conjure up questions never squarely presented to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985); Small v. Endicott, 998 F.2d 411 (7th Cir. 1993); Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990) (The “special judicial solicitude” with which a [court] should view such pro se complaints does not transform the court into an advocate.).
DISCUSSION
Plaintiff has filed a Motion for Leave to Proceed in forma pauperis under 28 U.S.C. § 1915. (ECF No. 2). However, based on Lomax v. Ortiz-Marquez, 140 S.Ct. 1721 (2020), Plaintiff is subject to the “three-strikes” rule of the PLRA, which provides:
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 a dismissal being with or without prejudice, a “strike” is based on the dismissal basis alone. Lomax, 140 S.Ct. at 1725. “A dismissal of a suit for failure to state a claim counts as a strike, whether or not with prejudice.” Id. at 1727. The language of the statute implicates such is a mandatory function of screening prisoner actions. The court already made an accounting of dismissals of suits for failure to state a claim, which counted as strikes pursuant to Lomax, and Plaintiff was fully struck in 2023. No. 4:23-cv5598-RMG (ECF No. 9)(noting Brown v. Charleston Cnty. Bond Ct., No. 2:23-cv-3862-RMG, Dkt. No. 12 (D.S.C. Sept. 13, 2023); Brown v. North Charleston City Police Dep't, No. 2:23-cv-03863-RMG, Dkt. No. 12 (D.S.C. Sept. 13, 2023); Brown v. Administration of the Reserve at Wescott, No. 2:23-cv-03864-RMG, Dkt. No. 12 (D.S.C. Sept. 13, 2023); Brown v. Charleston Cnty. Sheriff's Office, No. 4:23-cv-00656-RMG, Dkt. No. 23 (D.S.C. May 1, 2023)).
For procedural history, Plaintiff has filed more than three actions in this court. See No. 4:23-3861-RMG(dismissed under R. 41); No. 2:23-cv-1808-RMG(not detained at time of filing); No. 2:23-998-RMG(not detained at time of filing), No. 4:23-cv-976-RMG(not detained at time of filing); 4:21-cv-2819(dismissed under R. 41). These actions were not considered here towards accumulating the three strikes under § 1915(g) .
The three-strikes rule was enacted to bar those detained, such as the Plaintiff here, who have filed prior litigation in a federal court that has been dismissed with or without prejudice for actions that are “frivolous, malicious, or fails to state a claim upon which relief may be granted,” from pursuing certain types of federal civil litigation without prepayment of the filing fee. “The litigant here has accumulated three prior dismissals on statutorily enumerated grounds. Consequently, a court may not afford him in forma pauperis status with respect to his additional civil actions.” Coleman v. Tollefson, 575 U.S. 532 (2015).
In light of Plaintiff's prior dismissals as discussed above, he cannot now proceed with the instant Complaint in forma pauperis unless his claim satisfies the exception for imminent danger of serious physical injury provided by the three-strikes rule. See 28 U.S.C. § 1915(g).
This Complaint does not fit within this exception to enable Plaintiff to proceed in forma pauperis because Plaintiff can not allege imminent danger of serious physical injury based on the alleged claims presented. Plaintiff's complaint is nearly illegible and Plaintiff has been instructed numerous times by the court to write legibly in prior actions. Plaintiff alleges the event occurred on August 23, 2023. (ECF No. 1 at 5). The “imminent danger” must “exist contemporaneously when the action is filed,” Hall v. United States, 44 F.4th 218, 224 (4th Cir. 2022), as “Congress intended that a three-strikes prisoner have opportunity to ask the court for its aid in addressing a danger that is close at hand, not a past infraction.” Meyers v. Comm'r of Soc. Sec. Admin., 801 Fed.Appx. 90, 96 (4th Cir. 2020)(prisoner case). Plaintiff's allegations are not involving recent events and Plaintiff does not meet the “imminent” requirement.
Plaintiff appears to allege his claims are for discrimination based on an executive order, state law, the Eighth Amendment, and medical malpractice. (ECF No. 1 at 4). Plaintiff alleges other detainees in general population receive four hours of recreation, and due to his segregation status, he receives one hour of recreation daily. (ECF No. 1 at 6). Plaintiff alleges his sunlight exposure is causing a vitamin D deficiency. (ECF No. 1 at 6). Plaintiff cites state statutes. (ECF No. 1 at 6). Plaintiff alleges “it takes Vitamin D to produce semen.” (ECF No. 1 at 6). Plaintiff alleges he included disciplinary sanctions “to prove these facts to support my claim.” (ECF No. 1 at 7). Plaintiff included a January 2024 reprimand resulting in loss of tablet for three days for refusing to return to his cell at the end of recreation. (ECF No. 1 at 9). Plaintiff included a reprimand dated June 2023 for failure to stop digging in the trash. (ECF No. 1 at 23). It is unclear how this relates to his alleged claims. Under the heading of “relief,” Plaintiff alleges his skin was impaired from not being able to receive enough sunlight and requests 15 million dollars and criminal charges. (ECF No. 1 at 11-12). Plaintiff alleges that he has filed several medical request to be seen and has been declined medical services. (ECF No. 1 at 11). Yet, Plaintiff attached two medical consent forms where Plaintiff was given permission in November 2023 to keep baby wipes, disposable brief, and “4x4 abd pads” on his person and in August 2023 to keep gauze on his person. (ECF No. 1 at 15, 16). Under the “injury” heading, Plaintiff refers to President Richard Nixon. (ECF No. 1 at 13). Plaintiff alleges that something to do with his skin had to be surgically removed and he “enclosed [a] medication order to prove this.” (ECF No. 1 at 13). Plaintiff alleges all of his follow up appointments were cancelled. (ECF No. 1 at 13). Plaintiff alleges Brady was violated. (ECF No. 1 at 14).
Plaintiff's allegations of vitamin D deficiency and skin concerns do not rise to delayed or denied treatment resulting in serious life threatening medical issues. See Hall v. United States, 44 F.4th 218, 226 (4th Cir. 2022)(collecting cases where temporary conditions causing discomfort and pain that are unlikely to lead to impending death or other severe bodily harm do not satisfy the imminent danger exception). The denial/delay of medical care in Hall was for worsening, possibly life altering injuries: ongoing loss in lung capacity, limited mobility, and a possibly cancerous nodule in his lungs that may be increasing in size. Id. at 226-228. Plaintiff's allegations regarding vitamin D and his skin are not comparable and do not meet the standard of a type of condition that is likely to lead to impending death or severe harm. Additionally, Plaintiff's attachments show he received care for past skin ailments.
Plaintiff's allegations do not meet the imminent danger requirement of § 1915(g). Therefore, to proceed with his Complaint, Plaintiff must pay the full filing fee.
Recommendation
Accordingly, it is recommended that Plaintiff's motion for leave to proceed in forma pauperis (ECF No. 2) be denied. To proceed with this Complaint, Plaintiff must pay the full filing fee (currently $350) plus the $55 administrative fee for a total fee due of $405.
Effective May 1, 2013, the Judicial Conference added an administrative fee of $50 to the filing fee of $350; such fee was increased to $55 in December 2023. The $55 administrative fee is not applicable to in forma pauperis cases but would apply to Plaintiff here.
It is further recommended that the Court give Plaintiff fourteen(14) days from the date the United States District Judge rules on this Report and Recommendation (or a specific date determined by the United States District Judge) to pay the full $405 filing fee, in which event this matter can be returned to the undersigned magistrate judge to conduct a review of Plaintiff's complaint. However, if Plaintiff fails to pay the full $405 filing fee within the time period set by the United States District Judge, or seek an extension of time to do so, it is further recommended that, by a self-executing Order or by additional Order of this District Court, the complaint be dismissed without prejudice and without issuance of service of process.
Even if Plaintiff pays the filing fee, all civil lawsuits brought by pro se filers are subject to screening. As such, if Plaintiff timely pays the filing fee, his Complaint will still be subject to review by the undersigned to determine if service of process should be authorized.
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 2317
Florence, South Carolina 29503
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).