Opinion
C/A 4:24-2849-TMC-TER
05-10-2024
Phillip H. Crocker, III, #298423, a/k/a Phillip Henry Crocker, III, Plaintiff, v. Bryan Sterling, David Martinez, Curtis Early, Defendants.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
This is a civil action filed by a state prisoner, 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 prioroccasions, 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 following is an accounting of dismissals of suits for failure to state a claim, which count as strikes pursuant to Lomax. The language of the statute implicates such is a mandatory function of screening prisoner actions.
There does not appear to be a time limit on the accumulation of strikes. See Gerald v. Mohr, 2020 WL 489230, at *1 (S.D. Ohio Jan. 30, 2020)(addressing Plaintiff's objections of distance in time of actions accumulated); Polanco v. Hopkins, 510 F.3d 152, 155(2d Cir. 2007)(noting dismissal counts back to 1987); Lewis v. King Cnty, 2019 WL 4454422, at *1 (W.D. Wash. June 13, 2019), adopted by 2019 WL 3058974 (counting dismissals in 2002 and 2010); Peeples v. Conley, 2023 WL 312784, at *1(S.D. Ohio Jan. 19, 2023)(addressing Plaintiff's arguments regarding three strikes and being imprisoned for 35 years and finding “there is no time limit on Section 1915(g)'s three strikes provision”); Joseph v. Johnson, 2021 WL 4430269, at *3 (D.N.M. Sept. 27, 2021), reconsideration denied, 2021 WL 5937588 (D.N.M. Dec. 16, 2021), appeal dismissed, 2022 WL 1044914 (10th Cir. Mar. 4, 2022)(“there is no time limit in Section 1915(g)”).
4:04-cv-2152-RBH
In 2005, Plaintiff's § 1983 action, filed while detained in Kirkland Correctional Institution, against a witness in Plaintiff's criminal trial with virtually identical allegations as those in Nos. 4:04-cv-2153-RBH and 4:04-cv-2154-RBH against non-state actors, was summarily dismissed, and the adopted recommendation stated “for failure to state a claim.” No. 4:04-cv-2152-RBH(ECF No. 6). 4:04-cv-2153-RBH
In 2005, Plaintiff's § 1983 action, filed while detained in Kirkland Correctional Institution, against a witness in Plaintiff's criminal trial, with virtually identical allegations as those in Nos. 4:04-cv-2152-RBH and 4:04-cv-2154-RBH against a non-state actor, was summarily dismissed, and the adopted recommendation stated “for failure to state a claim.” No. 4:04-cv-2153-RBH(ECF No. 4).
4:04-cv-2154-RBH
In 2005, Plaintiff's § 1983 action, filed while detained in Kirkland Correctional Institution, against a witness in Plaintiff's criminal trial, with virtually identical allegations as those in Nos. 4:04-cv-2152-RBH and 4:04-cv-2153-RBH against a non-state actor, was summarily dismissed, and the adopted recommendation stated “for failure to state a claim.” No. 4:04-cv-2154-RBH(ECF No. 4).
Plaintiff is requesting in forma pauperis status in this action after these three prior dismissed actions. (ECF No. 2). Plaintiff paid the fee in the three prior actions. As to the three prior actions, § 1915(g) does not require that those prior actions proceeded in forma pauperis; § 1915(g) only requires that the “fourth action,” after the three or more prior occasions, requests in forma pauperis and that the three prior actions were “while incarcerated” and dismissed for “frivolous, malicious, or fails to state a claim upon which relief may be granted.” There is no requirement in § 1915(g) that the three prior actions be under in forma pauperis status. 28 U.S.C. § 1915(g); see also Passarella v. Cardinal Fin. Corp., 2021 WL 134609, at *1 (E.D. N.C. Jan. 13, 2021)(plaintiff's prior cases met the predicate for application of § 1915(g) based on the dismissal ground regardless of the fee being paid in the three prior cases); Jackson v. Aldridge, 2023 WL 6016354, at *4 (S.D. W.Va. June 12, 2023), report and recommendation adopted, 2023 WL 5320777 (S.D. W.Va. Aug. 18, 2023)(“paying [the fees] does not prevent the imposition of a strike if the case is ultimately dismissed for one of the reasons set forth in § 1915(g). The prohibition in Section 1915(g) is triggered once a prisoner has accumulated three strikes, regardless of whether or not the fees were eventually paid in the cases that were dismissed.”).
Plaintiff has received at least three dismissals for failure to state a claim, thus accumulating “three strikes.” See e.g. Ackbar v. Jones, 7:20-cv-825-RMG, No. 20-6880 (4th Cir. Feb 26, 2021, ECF No. 13)(rescinding prior grant of in forma pauperis and counting prior actions dismissed for failure to state a claim); Pitts v. South Carolina, 65 F.4th 141 (4th Cir. 2023)(holding a district court may not contemporaneously rule at the time of a summary dismissal that such dismissal counts as a strike in the future; instead, the fourth action is where the court is to look backwards and evaluate the prior suits).
The three-strikes rule was enacted to bar prisoners, 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 alleges prison employees are violating his rights under the ADA and the Rehabilitation Act by not transferring him to an institution where Claflin University programs are available, due to his mental health status level. (ECF No. 1). 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 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 action 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).