Opinion
C. A. 7:20-3252-TMC-MHC
07-11-2021
Robert Lee Foster, Plaintiff, v. Larry W. Powell, Tony Fisher, J. L. Hall, Bradford James, Daniel K. Swad, Ashley C. Harris, Spartanburg County Jail, Spartanburg City Police Department, Spartanburg Sheriff's Department, Chuck Wright, Attorney General Alan Wilson, and State of South Carolina, Defendants.
REPORT AND RECOMMENDATION
MOLLY H. CHERRY, UNITED STATES MAGISTRATE JUDGE
This a civil action filed by a state prisoner. In the event a limitations issue arises, Plaintiff shall have the benefit of the holding in Houston v. Lack, 487 U.S. 266 (1988) (prisoner's pleading was filed at the moment of delivery to prison authorities for forwarding to the district court). Under 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge.
Under established local procedure in this judicial district, a careful review has been made of the pro se Complaint pursuant to the procedural provisions of 28 U.S.C. § 1915, the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996), and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992), Neitzke v. Williams, 490 U.S. 319 (1989), Haines v. Kerner, 404 U.S. 519 (1972), Nasim v. Warden, Maryland House of Corr., 64 F.3d 951 (4th Cir. 1995), and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983). Pro se petitions are held to a less stringent standard than those drafted by attorneys, and a court is charged with liberally construing a petition filed by a pro se litigant to allow the development of a potentially meritorious case. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016).
However, even when considered under this less stringent standard, for the reasons set forth below, the Complaint submitted in this case is subject to summary dismissal. The requirement of liberal construction does not mean that this Court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for “all civil actions”).
BACKGROUND
Plaintiff is an inmate at the Trenton Correctional Institution of the South Carolina Department of Corrections (SCDC). He challenges his criminal conviction, asserting claims under 42 U.S.C. § 1983 for violation of his constitutional rights as to the conviction. Plaintiff also asserts that his max-out or release date has been calculated incorrectly. Complaint, ECF No. 1 at 4-8. Additionally, Plaintiff claims he is subjected to human slavery, human trafficking, and exposure to the COVID-19 virus by remaining incarcerated. Id. at 5. Plaintiff appears to be asking to be released from prison. Id. at 6.
Records from the Spartanburg County Circuit Court and the SCDC indicate that Plaintiff was convicted (on May 20, 2008) on an October 3, 2007 charge of manufacture/distribute cocaine base, 3rd offense and was sentenced to twenty years' imprisonment. See Spartanburg County Seventh Judicial Circuit Public Index, http://publicindex sccourts.org/Spartanburg/PublicIndex/Ca Details.aspx?CourtAgency=42001&Casenum=2008GS4202261&CaseType=C (last visited Mar. 25, 2015); http://public.doc.state.sc.us/scdc-public/ [Search Inmate “Robert Foster”] (last visited Jan. 7, 2021).
This Court “may properly take judicial notice of matters of public record.” See Philips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009); see also 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.'”). It should also be noted that a petition was previously filed by Plaintiff pursuant to 28 U.S.C. § 2254 challenging his conviction and sentence, and this Court granted the respondent's motion for summary judgment and dismissed the petition. See Foster v. Reynolds, No. CV 9:14-3853-TMC, 2015 WL 5920736 (D.S.C. Oct. 8, 2015).
DISCUSSION OF CLAIMS
A. Duplicative Claims/Frivolity
As an initial matter, Plaintiff has previously unsuccessfully tried to raise many of the issues he again tries to raise here. In Foster v. Powers, No. 3:08-25-PMD (D.S.C.), Plaintiff brought claims, including for false arrest and improper search pertaining to the 2008 conviction for manufacturing and distributing crack cocaine, against some of the Defendants listed in this case (Defendants Powers, Fisher, Hall, Swad, and James). Summary judgment was granted to the defendants. In Foster v. Cole, No. 3:09-452-PMD, Plaintiff brought claims pertaining to his 2008 conviction for manufacturing and distributing crack cocaine against some of the Defendants listed in this case (Defendants Swad, Hall, James, and Harris), which were dismissed as frivolous and vexatious as Plaintiff had previously brought the same claims. In Foster v. Powers, No. 9:15-1611-TMC, Plaintiff again brought claims concerning his 2008 conviction against some of the Defendants listed in this case (Defendants Power, Fisher, Hall, James, and Swad) that were summarily dismissed. To the extent Plaintiff is attempting to bring the same claims here that were previously asserted in his other lawsuits, these duplicate claims are frivolous and are subject to dismissal on that basis. See Cottle v. Bell, No. 00-6367, 2000 WL 1144623, at *1 (4th Cir. Aug.14, 2000) (“Because district courts are not required to entertain duplicative lawsuits, they may dismiss such suits as frivolous pursuant to § 1915(e)”); Aziz v. Burrows, 976 F.2d 1158 (8th Cir.1992) (“[D]istrict courts may dismiss a duplicative complaint raising issues directly related to issues in another pending action brought by the same party.”). Therefore, in the interests of judicia economy and efficiency, such duplicative claims should be summarily dismissed. See Aloe Crem Laboratories, Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970) (“The District Cour clearly had the right to take notice of its own files and records and it had no duty to grind the sam corn a second time. Once was sufficient.”).
Although Plaintiff names Larry W. Powell instead of Larry W. Powers as a Defendant in this case, Powell and Powers (and Power) appear to be the same person. Plaintiff describes this person in both cases as the Director of the Spartanburg County Jail. Additionally, he named and referred to the Director of the Spartanburg County Jail as Larry W. Powell in another lawsuit. See Foster v. Gowdy, No. 3:04-23193-PMD-JRM (D.S.C. April 13, 2005).
B. Failure to State a Claim Against Named Defendants
Even if the allegations asserted in this case are not duplicative, this case should b dismissed because Plaintiff fails to state a claim against any of the named Defendants. Although Plaintiff lists the names of the Defendants in the caption of his Complaint, his pleadings fail to provide any specific facts to support a claim that these named Defendants violated his federa constitutional or statutory rights. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007 (requiring, in order to avoid dismissal, “ ‘a short and plain statement of the claim showing that th 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'” (quoting Fed.R.Civ.P. 8(a)(2))). Although the “liberal pleading requirements” of Rule 8(a) only require a “short and plain” statement of the claim, a plaintiff mus “offer more detail ... than the bald statement that he has a valid claim of some type against th defendant.” Trulock v. Freeh, 275 F.3d 391, 405 (4th Cir. 2001) (internal citations omitted); se also White v. White, 886 F.2d 721, 723 (4th Cir. 1989) (district court did not abuse discretion by dismissing plaintiff's complaint which “failed to contain any factual allegations tending to suppor his bare assertion”).
C. Failure to State a Claim for Relief
Additionally, this case should be dismissed because Plaintiff has not asserted a viable claim for relief. He writes:
I am requesting to be relief since the court clock stamp, and date Aug 27, 2020, which clarified that the Plaintiff has no charge “or” conviction to actual be imprison serving 20 yrs 85%.
ECF No. 1 at 6. Plaintiff appears to request that his charges be dismissed or that he be released from prison, However, release from prison is not is a remedy that is not available in a § 1983 action. See Heck v. Humphrey, 512 U.S. 477, 481 (1994) (stating that “habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release, even though such a claim may come within the literal terms of § 1983”); Preiser v. Rodriguez, 411 U.S. 475, 487-88 (1973)(attacking the length of duration of confinement is within the core of habeas corpus).
To the extent that Plaintiff is just generally asking for “relief” rather than release, he fails to specify what relief he seeks. Were this Court to find that Plaintiff's rights have been violated, but order no remedy, it would, in effect, be rendering an advisory opinion; such action is barred by Article III of the Constitution. Preiser v. Newkirk, 422 U.S. 395, 401 (1975); see also Bowler v. Young, 55 Fed.Appx. 187, 188 (4th Cir. 2003); Norvell v. Sangre de Cristo Dev. Co., 519 F.2d 370, 375 (10th Cir. 1975) (federal courts do not render advisory opinions).
Even if Plaintiff were to amend his Complaint to request monetary damages based on his arrest, the prosecution of his criminal charge, and/or his imprisonment, his claims are subject to summary dismissal based on the United States Supreme Court's decision in Heck v. Humphrey, where the Court held that a state prisoner's claim for damages is not cognizable under § 1983 where success of the action would implicitly question the validity of the conviction or duration of the sentence, unless the prisoner can demonstrate that the conviction or sentence has been previously invalidated. Heck, 512 U.S. at 486-487.
The rule in Heck does not apply to claims of false arrest in the pre-conviction context, where criminal charges are still pending. See Wallace v. Kato, 549 U.S. 384 (2007). However, as noted above, Plaintiff was convicted on a charge in stemming from his October 3, 2007 arrest. Therefore, as Plaintiff has not shown favorable terminations as to his conviction, any claims of false arrest, malicious prosecution, or false imprisonment are barred by Heck and should be dismissed. See Roesch v. Otarola, 980 F.2d 850, 853-854 (2d Cir. 1992) (holding that requirement that a plaintiff receive favorable termination applies to claims of false arrest, false imprisonment, and malicious prosecution).
Plaintiff submitted a copy of a letter from the Office of the Solicitor's Pre-Tr Programs and Expungements for the State of South Carolina in which it is stat information on Plaintiff's South Carolina Law Enforcement Division (SLED) bac may be eligible for an expungement from the public record. Listed is a 10/04/2 trafficking ice (methamphetamine) for which it was noted it was “non con CHARGE.” ECF No. 1-1 at 3. However, Plaintiff has presented no evidence conviction and sentence for manufacturing and distributing cocaine base, for which incarcerated, has been expunged. Additionally, as noted above, any challenge to a sentence cannot be brought in a § 1983 action.
Plaintiff also appears to be attempting to challenge his “max-out” or priso ECF No. 1 at 5. However, this also is a request for release from prison which canno this § 1983 action. Instead, the available federal remedy is a writ of habeas corpus u § 2241 or 28 U.S.C. § 2254, which can be filed only after Plaintiff has exhausted remedies. See 28 U.S.C. § 2254(b); Picard v. Connor, 404 U.S. 270, 275-77 (19 30th Judicial Circuit Court, 410 U.S. 484, 490-91(1973) (exhaustion also req U.S.C. § 2241).
D. Slavery and Human Trafficking
Plaintiff claims that his employment (presumably at an inmate job) at SCDC is slavery and human trafficking. The Thirteenth Amendment declares that “[n]either slavery nor involuntary servitude, except as a punishment for crime whereof the parties shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” U.S. Const. amend. XIII, § 1. Plaintiff has not alleged any facts to support his assertion and it does not appear that Plaintiff, as a convicted prisoner, can allege any facts to show that his Thirteenth Amendment rights have been violated. Nor has Plaintiff alleged any facts indicating he has been subjected to human trafficking.
E. Conditions of Confinement/COVID-19
Plaintiff also claims that he is exposed to the COVID-19 virus because of his medical condition. However, Plaintiff has not alleged that any of the named Defendants (the majority of which do not appear to have any connection to SCDC) is responsible for his current conditions of confinement. Nor has he stated a claim concerning his conditions of confinement. To state a claim that conditions of confinement violate constitutional requirements, “a plaintiff must show ‘both (1) a serious deprivation of a basic human need; and (2) deliberate indifference to prison conditions on the part of prison officials.'” Strickler v. Waters, 989 F.2d 1375, 1379 (4th Cir.1993) (quoting Williams v. Griffin, 952 F.2d 820, 824 (4th Cir. 1991)). A plaintiff asserting unconstitutional conditions of confinement must demonstrate that he suffered a serious or significant physical or mental injury as a result of the challenged condition. See Strickler, 989 F.2d at 1380-81. Here, Plaintiff has not asserted a serious or significant injury. Further, Plaintiff has not alleged that any of the named Defendants (who do not appear to even work at his correctional facility) have been deliberately indifferent to his prison conditions. And, unfortunately, “[e]very person in the United States, whether in a detention facility or not, faces COVID-19 exposure.” Toure v. Hott, 458 F.Supp.3d 387, 408 (E.D. Va. 2020) (citation omitted) (emphasis added).
F. Entities not Subject to Suit under § 1983
Defendant Spartanburg County Jail is additionally subject to summary dismissal because it appears to be a building or group of buildings. Such an entity is subject to summary dismissal as courts have routinely held that an inanimate object such as a building, facility, or grounds do not act under color of state law and are not “persons” subject to suit under § 1983. See Allison v. California Adult Auth., 419 F.2d 822, 823 (9th Cir. 1969) (California Adult Authority and San Quentin Prison not “person[s]” subject to suit under 42 U.S.C. § 1983]; Nelson v. Lexington Cnty. Det. Ctr., No. 8:10-2988-JMC, 2011 WL 2066551, at *1 (D.S.C. May 26, 2011) (Finding that a detention center, as a building and not a person, was not amenable to suit under § 1983); Brooks v. Pembroke City Jail, 722 F.Supp. 1294, 1301 (E.D. N.C. 1989) (“Claims under § 1983 are directed at ‘persons' and the jail is not a person amenable to suit.”).
Defendants Spartanburg City Police Department and Spartanburg Sheriff's Department are additionally subject to summary dismissal because they are a group of officers in a building. As discussed above, buildings are not subject to suit under § 1983. Further, courts have found that groups of persons including police and sheriff's departments are not subject to suit under § 1983. See Strickland v. Spartanburg Cty. Sheriff's Office, No. 7-19-CV-00326-MGL-KFM, 2019 WL 5748583, at *4 (D.S.C. Mar. 6, 2019), report and recommendation adopted, 2019 WL 5721661 (D.S.C. Nov. 4, 2019) (holding Defendant Spartanburg County Sheriff's Office is not a “person” as defined by § 1983, thus, it is entitled to summary dismissal); see also Post v. City of Fort Lauderdale, 750 F.Supp. 1131 (S.D. Fla. 1990) (dismissing city police department as improper defendant in § 1983 action because not “person” under the statute); Shelby v. City of Atlanta, 578 F.Supp. 1368, 1370 (N.D.Ga. 1984)(dismissing police department as party defendant because it was merely vehicle through which city government fulfills policing functions).
The view that a municipal police department is not a legal entity subject to liability under § 1983 is in accord with the majority of federal courts that have addressed this issue. See, e.g., Dean v. Barber, 951 F.2d 1210, 1214-15 (11th Cir. 1992); Petaway v. City of New Haven Police Dep't, 541 F.Supp.2d 504, 510 (D. Conn. 2008) (“[A] municipal police department is not subject to suit under section 1983 because it is not an independent legal entity.”); Terrell v. City of Harrisburg Police Dep't, 549 F.Supp.2d 671, 686 (M.D. Pa. 2008) (“It is well-settled that police departments operated by municipalities are not ‘persons' amenable to suit under § 1983.”); Gore v. Conway Police Dep't, No. 9:08-1806-RBH, 2008 WL 2566985 (D.S.C. June 26, 2008); Lyons v. Edgefield County Police, No. 8:05-2503-MBS, 2006 WL 3827501, at *3 (D.S.C. Dec. 28, 2006) (police department not a separate suable entity amenable to suit); Stump v. Gates, 777 F.Supp. 808, 815- 16 (D. Colo. 1991).
G. Prosecutorial Immunity
Defendant Alan Wilson, the Attorney General for the State of South Carolina, is further protected from suit for Plaintiff's claims, as prosecutors have absolute immunity from damages for activities performed as “an officer of the court” where the conduct at issue was closely associated with the judicial phase of the criminal process. See Van de Kamp v. Goldstein, 555 U.S. 335, 341-343 (2009). For example, when a prosecutor “prepares to initiate a judicial proceeding, ” “appears in court to present evidence in support of a search warrant application, ” or conducts a criminal trial, bond hearings, grand jury proceedings, and pre-trial “motions” hearings, absolute immunity applies. Id. at 343; see also Buckley v. Fitzsimmons, 509 U.S. 259 (1993); Dababnah v. Keller-Burnside, 208 F.3d 467 (4th Cir. 2000); Hendricks v. Bogle, 3:13-CV-2733-DCN, 2013 WL 6183982, at *2 (D.S.C. Nov. 25, 2013) (“In South Carolina, the Attorney General and his assistants function as prosecutors in criminal appeals, post-conviction relief actions, and in proceedings under the SVPA.... [The Attorney General has] absolute immunity for [his] prosecution-related activities in or connected with judicial proceedings.”); Garrett v. McMaster, 7:07-2952-HFF-WMC, 2008 WL 3411673 (D.S.C. Aug. 11, 2008) (finding that the Attorney General and a former Assistant Attorney General had prosecutorial immunity for conduct related to presenting the State's case). Therefore, if Plaintiff is attempting to assert a claim against Defendant Wilson based on his participation in Plaintiff's criminal proceedings, he cannot state a claim. See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (absolute immunity “is an immunity from suit rather than a mere defense to liability”).
MOTION TO PROCEED IN FORMA PAUPERIS
Plaintiff has filed a Motion for Leave to Proceed in forma pauperis (IFP) under 28 U.S.C. §1915. ECF No. 3. Plaintiff's IFP Motion should be denied because Plaintiff is subject to the “three-strikes” rule of the PLRA and he does not allege that he is under imminent danger of serious physical injury.
The PLRA's three-strikes rule “generally prevents a prisoner from bringing suit [IFP]- that is, without first paying the filing fee-if he has had three or more prior suits ‘dismissed on the grounds that [they were] frivolous, malicious, or fail[ed] to state a claim upon which relief may be granted.'” Lomax v. Ortiz-Marquez, 140 S.Ct. 1721, 1723 (2020) (quoting 28 U.S.C. § 1915(g)). Any of the enumerated types of dismissals counts as a strike, “whether [the dismissals are] with prejudice or without.” Id. To avoid application of the three-strikes bar, a prisoner must demonstrate that he is “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).
This statute 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 its 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).
This Court may take judicial notice that in at least three of Plaintiff's prior twelve non-habeas cases filed in this district since 1995, a “strike” has been entered because the civil actions were finally dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted. See Foster v. Cole, No. C/A 3:09-452-PMD-JRM, 2009 WL 1923382 (D.S.C. June 30, 2009), aff'd, 353 Fed.Appx. 833 (4th Cir. 2009)(dismissing case and assigning a strike because the complaint was frivolous and vexatious); Foster v. Gowdy, No. 3:04-23193- PMD-JRM (D.S.C. April 13, 2005) (dismissing case and assigning a strike because the complaint was frivolous); Foster v. State of SC, No. 3:03-384-PMD-JRM (D.S.C. March 5, 2003) (dismissing case and assigning a strike based on a finding of frivolity); see also Foster v. Spartanburg City Police Dep't & Crime Lab, No. 3:10-1469-CMC-JRM, 2010 WL 3420904 (D.S.C. July 8, 2010), report and recommendation adopted, No. CIV.A. 3:10-1469, 2010 WL 3420838 (D.S.C. Aug. 26, 2010)(denying plaintiff's motion to proceed IFP in light of his three prior strikes and dismissing the case for the plaintiff's failure to timely pay the full filing fee). “[T]he fact that an action was dismissed as frivolous, malicious, or failing to state a claim, and not the case's procedural posture at dismissal, determines whether the dismissal constitutes a strike under Section 1915(g).” Blakely v. Wards, 738 F.3d 607, 610 (4th Cir. 2013).
See Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“We note that ‘the most frequent use of judicial notice is in noticing the content of court records.'”).
Thus, Plaintiff cannot proceed with the instant Complaint without prepaying the filing fee 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); Lomax v. Ortiz-Marquez, 140 S.Ct. at 1723; Blakely v. Wards, 738 F.3d at 609; Green v. Young, 454 F.3d 405, 407 (4th Cir. 2006). This Complaint does not fit within this exception to enable Plaintiff to proceed IFP because Plaintiff does not allege that he is in imminent danger of serious physical injury as a result of Defendants' actions or inactions.
Courts have held that the “imminent danger” exception to § 1915(g)'s three strikes rule must be construed narrowly and applied only “for genuine emergencies, ” where “time is pressing” and “a threat ... is real and proximate” to the alleged official misconduct. Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). To satisfy the imminent danger element, Plaintiff must allege facts showing that he was in imminent danger at the time the complaint was filed; allegations that the prisoner has faced imminent danger in the past are insufficient to trigger the exception to section 1915(g). See Johnson v. Warner, 200 Fed.Appx. 270, 272 (4th Cir. 2006); Abdul-Akbar v. McKelvie, 239 F.3d 307, 314 (3d Cir. 2001). The imminent danger exception in § 1915(g) “focuses on the risk that the conduct complained of threatens continuing or future injury, not whether the inmate deserves a remedy for past misconduct.” Johnson v. Warner, 200 Fed.Appx. at 272 (quoting Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003)). Vague, speculative, or conclusory allegations are insufficient to meet the exception to the three-strikes rule. Rather, the inmate must make “specific fact allegations of ongoing serious physical injury, or of a pattern of misconduct evidencing the likelihood of imminent serious physical injury.” Id. Factual allegations that are remote, speculative, or hypothetical do not rise to the level of “imminent danger.” See Welch v. Selsky, No. CIVA906CV00812LEKDEP, 2008 WL 238553, at *5 (N.D.N.Y. Jan.28, 2008) (“The imminent danger an inmate faces, moreover, must be real, and not merely speculative or hypothetical.”); see also White v. State of Colorado, 157 F.3d 1226, 1231-1232 (10th Cir. 1998) (vague or conclusory assertions of harm fail to raise a credible allegation of imminent danger).
Plaintiff has not alleged any facts to establish imminent danger of serious physical injury. See, e.g., Merriweather v. Reynolds, 586 F.Supp.2d 548 (D.S.C. May 11, 2008) (holding that inmate's allegations of serious retaliation, continuous threats on his life, danger from prison gangs, and threats by prison personnel to put him in a pink jumpsuit, were insufficient to establish an imminent danger of physical harm under § 1915(g)). Here, Plaintiff primarily complains about his arrest, a search after his arrest, and the prosecution of his criminal case which occurred in 2007 and 2008.
Plaintiff claims he is being exposed to COVID-19 and appears to assert that he is at a heightened risk of catching this disease. See ECF No. 1 at 5-6. However, as noted above, Plaintiff has not alleged that any of the named Defendants have caused him any imminent danger. Such a speculative claim fails to allege a claim of imminent danger of serious physical injury. See, e.g., Johnson v. Wilcher, No. CV420-089, 2020 WL 2064935, at *2 (S.D. Ga. Apr. 28, 2020) (imminent danger exception to section 1915(g) did not apply based on a general fear of contracting COVID-19 in the prison); Littlejohn v. Whitmer, No. 2:20-CV-39, 2020 WL 1685310, at *3 (W.D. Mich. Apr. 7, 2020) (plaintiff failed to allege imminent danger from COVID-19 where the conditions of confinement did not place him in any greater risk than the general public and did not claim a particularized risk of imminent physical harm).
Plaintiff has accrued at least three valid strikes under the PLRA and has not alleged that he is under imminent danger of serious physical injury. Thus, even if he has stated a cognizable claim (which, as discussed above, he has not done) he is barred by from filing this action IFP and must pay the filing fee if he wishes to proceed. See 28 U.S.C. § 1915(g); Green v. Young, 454 F.3d at 407.
RECOMMENDATION
Based on the foregoing, it is recommended that the Court dismiss Plaintiffs Complaint without issuance and service of process. It is also recommended that Plaintiff s Motion to Proceed IFP (ECF No. 3) be DENIED.
The undersigned is of the opinion that Plaintiff cannot cure the defects identified above by amending his complaint. See Bing v. Brivo Sys., LLC, 959 F.3d 605, 608-615 (4th Cir. May 19, 2020) (citing Goode v. Cent. Va Legal Aid Soc'y, 807 F.3d 619 (4th Cir. 2015); Domino Sugar Corp. v. Sugar Workers Local Union 392 of United Food and Commercial Workers Int'l Union, 10 F.3d 1064 (4th Cir. 1993)).
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).