Opinion
C. A. 8:23-cv-00611-RBH-JDA
02-16-2023
Herbert Alonzo Robinson, Plaintiff, v. Captain Greathouse, Chaplin Smith, Chaplin Smalls, Jane and John Doe Meidcal Personnel, Jail Administrators, Defendants.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin, United States Magistrate Judge
Herbert Alonzo Robinson (“Plaintiff”), proceeding pro se, brings this civil action against the above-named Defendants. Pursuant to 28 U.S.C. § 636(b)(1) and District of South Carolina Local Civil Rule 73.02(B)(2)(e), the undersigned Magistrate Judge is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the District Court.
Plaintiff is a pretrial detainee at the Charleston County Detention Center (the “Detention Center”). [Doc. 1 at 5.] Plaintiff files this action requesting leave to proceed in forma pauperis under 28 U.S.C. § 1915. [Docs. 2; 2-1.] However, the undersigned concludes that Plaintiff is subject to the three-strikes rule of the Prison Litigation Reform Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321-71 (1996) (“PLRA”). Accordingly, for the reasons explained below, it is recommended that Plaintiff's motion to proceed in forma pauperis be denied and that the Complaint be dismissed unless Plaintiff timely pays the full filing fee.
BACKGROUND
Plaintiff commenced this action by filing a Complaint against the above-named Defendants in which he makes the following pertinent allegations. [Doc. 1.] Plaintiff contends that Defendants have violated his rights to due process and equal protection under the Fourteenth Amendment and his right to freedom of religion under the First Amendment. [Id. at 4.] Specifically, Plaintiff contends Defendants have refused to place him on a Kosher/Halal diet, refused to modify his diabetic medications, and refused to modify his diabetic-religious diet. [Id.]
Plaintiff contends that, when he arrived at the Detention Center, he notified the staff that he was both diabetic and an Islamic-Hebrew, that he could not eat pork products, and that he could only eat a diabetic-Kosher or diabetic-Halal diet to conform with his religious and medical dietary needs. [Id. at 5-6.] Plaintiff makes other similar allegations concerning his dietary needs and Defendants' ongoing efforts to deny him a proper diet in violation of his religion. [Id. at 13-16.]
For his injuries, Plaintiff contends that he has suffered mental and emotional distress and has been denied a Kosher/Halal diet or medical diet consistent with his religious rights. [Id. at 6.] For his relief, Plaintiff requests injunctive relief, requiring Defendants to place him on a religious Kosher/Halal diet, and money damages. [Id.]
APPLICABLE LAW
The PLRA requires this Court to engage in a preliminary screening of any complaint in which a prisoner seeks redress from a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must identify “cognizable claims or dismiss the complaint, or any portion [thereof, that] is frivolous, malicious, or fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915A(b)(1). Further, the PLRA limits the ability of prisoners to file civil actions without prepayment of filing fees in what has become known as the three-strikes rule. Jones v. Bock, 549 U.S. 199, 203-04 (2007). The three-strikes rule, codified at 28 U.S.C. § 1915(g), provides:
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.28 U.S.C. § 1915(g). Thus, “[w]hen a prisoner has previously filed at least three actions or appeals that were dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted, the [PLRA's] ‘three strikes' provision requires that the prisoner demonstrate imminent danger of serious physical injury in order to proceed without prepayment of fees.” McLean v. United States, 566 F.3d 391, 393-94 (4th Cir. 2009) (citing 28 U.S.C. § 1915(g)), abrogated on other grounds by Lomax v. Ortiz-Marquez, 140 S.Ct. 1721 (2020).
In Lomax, the Supreme Court held that a dismissal without prejudice for failure to state a claim qualifies as a strike under Section 1915(g), abrogating the holding of McLean that a dismissal without prejudice for failure to state a claim does not constitute a strike. Lomax, 140 S.Ct. at 1724.
The PLRA's three-strikes rule was enacted to bar prisoners, such as Plaintiff, who have filed prior frivolous or meritless litigation in a federal court from pursuing certain types of federal civil litigation without prepayment of the filing fee. Lomax, 140 S.Ct. at 1726.
To avoid application of 28 U.S.C. § 1915(g), a prisoner may prepay the filing fee in full. Nevertheless, all civil lawsuits brought by prisoners seeking relief from a governmental entity, officer, or employee are subject to screening pursuant to 28 U.S.C. § 1915A, even those lawsuits where the full filing fee is paid at the time of filing. See Green v. Young, 454 F.3d 405, 407 (4th Cir. 2006).
DISCUSSION
Plaintiff's Three Strikes
Here, Plaintiff is subject to the three-strikes rule under 28 U.S.C. § 1915(g). Plaintiff is a “frequent filer” who has filed approximately 28 cases in this Court. At least three-and likely more-dismissals of Plaintiff's prior cases may be deemed strikes under the PLRA in accordance with the standard set forth in Lomax. The Court will evaluate each dismissal in turn below.
The Court takes judicial notice of Plaintiff's prior actions filed in this Court. See Philips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining that 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 ‘the most frequent use of judicial notice is in noticing the content of court records.'”). In addition to the present action (case number 23-0611), Plaintiff has previously filed actions at case numbers 17-1413, 13-2321, 13-2109, 12-0638, 11-2285, 11-1820, 06-0985, 04-1262, 03-0289, 02-0353, 01-2849, 012252, 01-2170, 01-0152, 00-3779, 00-3673, 00-3302, 00-3215, 00-0543, 99-3471, 992539, 99-2076, 97-0558, 96-2090, 96-1988, 96-1987, 95-2312. Plaintiff has also filed appeals from many of these actions with the United States Court of Appeals for the Fourth Circuit at case numbers 14-7364, 12-7427, 05-7364, 99-7491, 99-6067, 96-7494.
Indeed, in one case, this Court warned Plaintiff as follows:
[I]n light of the notations in Plaintiff's medical records, that Plaintiff routinely threatened medical personnel with lawsuits. See, e.g., ECF No. 46-9, at 6 (“INMATE UPSET A[T] STAFF AND THREATENING LAWSUITS”). Coupled with the lack of merit of Plaintiff's deliberate indifference claims, these threats can support an inference that this action was brought maliciously. The Court warns Plaintiff that it will not tolerate lawsuits maliciously filed and advises Plaintiff of the serious consequences he may face under the [PLRA] if the Court ever finds he does so.Robinson v. Jarrell, No. 8:13-cv-02321-RBH-JDA (D.S.C. Aug. 20, 2014), Doc. 68 at 5 n.5.
First Dismissal, No. 99-2539
On September 10, 1999, the district judge, adopting the recommendation of the magistrate judge, summarily dismissed Plaintiff's action at case number 99-2539 as barred by Heck v. Humphrey, 512 U.S. 477 (1994). Robinson v. Brightharp, No. 2:99-cv-02539-JFA-RSC, Docs. 3; 5 (D.S.C. Sept. 10, 1999). “[A] dismissal under Heck constitutes a ‘strike' under 28 U.S.C. § 1915(e)(2) and (g).” Dewitt v. Adduci, No. 3:02-cv-0942-24BC, 2002 WL 32332077, at *6 (D.S.C. Aug. 13, 2002), aff'd, 62 Fed.Appx. 532 (4th Cir. 2003); see also Osborne v. Carey, No. 2:16-cv-01651, 2017 WL 939008, at *12 (S.D. W.Va. Mar. 9, 2017) (explaining that “the practice in the Fourth Circuit is to dismiss Heck-barred claims as frivolous, without prejudice” and that a “[d]ismissal in these circumstances counts as a strike for purposes of 28 U.S.C. § 1915(g)”).
Second Dismissal, No. 06-0985
On May 11, 2007, the district judge, adopting the recommendation of the magistrate judge, dismissed Plaintiff's action at case number 06-0985 for failing to state a claim, found the action to be frivolous and malicious, and designated the dismissal a strike under the PLRA. Robinson v. Green, No. 2:06-cv-0985-RBH-RSC, Docs. 39 at 19; 42 at 3; 43 (D.S.C. May 11, 2007).
Third Dismissal, No. 13-2109
On May 23, 2000, the district judge, adopting the recommendation of the magistrate judge, dismissed Plaintiff's action at case number 13-2109 on Defendants' motion under Rule 12(b)(6) for failing to exhaust his administrative remedies. Robinson v. Wilson, No. 8:13-cv-2109-RBH-JDA, Docs. 43; 47 (D.S.C. Jul. 31, 2014).
It is well-settled that “a routine dismissal for failure to exhaust administrative remedies does not amount to a strike.” Green v. Young, 454 F.3d 405, 408 (4th Cir. 2006). However, the Fourth Circuit has instructed:
Indeed, the undersigned recognizes that courts in this District consistently decline to designate “routine” dismissals for failure to exhaust as a strike under the PLRA-as they should. See, e.g., Wilson v. Givens, No. 9:21-cv-00523-RMG-MHC, 2022 WL 2500356, at *4 n.3 (D.S.C. May 9, 2022), Report and Recommendation adopted by 2022 WL 2128548 (D.S.C. June 14, 2022); Smith v. Stirling, No. 9:20-cv-2359-TMC-MHC, 2020 WL 8713675, at *2 n.3 (D.S.C. Sept. 10, 2020), Report and Recommendation adopted by 2021 WL 460514 (D.S.C. Feb. 9, 2021); Jackson v. Lewis, No. 4:09-cv-918-TLW-TER, 2009 WL 1639575, at *4 n.3 (D.S.C. June 11, 2009); Lawson v. Berg, No. 9:07-cv-907-JFA-GCK, 2008 WL 4200328, at *3 (D.S.C. Sept. 2, 2008).
[This] conclusion is limited to what we have referred to as “routine” dismissals for failure to exhaust-typically dismissals arising in cases where the prisoner's claims have been presented to a court for the first time. Nothing in this opinion should be understood as limiting a district court's discretion in non-routine cases, where evidence of frivolousness or malice exists beyond the mere fact that exhaustion has not been obtained. For example, if a district court dismisses a complaint on exhaustion grounds and the prisoner, without exhausting his remedies, files another complaint seeking relief for the same conduct alleged in the original complaint, the district court could conclude that the second complaint was frivolous or malicious and thus qualifies as a strike under § 1915(g). This is but one example, and there may well be other situations where the circumstances would warrant treating as a strike a dismissal of an action filed by a prisoner who did not first exhaust his administrative remedies.Id. at 409-10. Further, “[w]hen a court dismisses an unexhausted complaint under Rule 12(b)(6), thus concluding that the complaint fails to state a claim, section 1915(g)'s plain text compels us to count that case as a strike.” Thompson v. Drug Enf't Admin., 492 F.3d 428, 438 (D.C. Cir. 2007), discussed and cited with approval in Blakely v. Wards, 738 F.3d 607, 616 (4th Cir. 2013), as amended (Oct. 22, 2013).
Here, the undersigned concludes that the dismissal of Plaintiff's action at case number 13-2109 fits squarely within the contours outlined by Green and Thompson, thus compelling the Court to deem the dismissal a strike under the plain language of the PLRA.
First, like the scenario described in Green, Plaintiff's unexhausted complaint at case number 13-2109 made that case “non-routine” for which counting the dismissal a strike under the PLRA is proper. In dismissing Plaintiff's case, this Court explained:
This Court previously dismissed, without prejudice, an action by Plaintiff alleging the same claims against . . . many of the same Defendants. The dismissal was for failing to appeal his grievances and thus exhaust them properly. Subsequent to the dismissal, Plaintiff simply requested that two grievances that were at issue in that action (grievance numbers 34523 and 43883) be appealed. See ECF No. 12-4 at 16. The detention center's grievance procedures, however, provide a five-day period to appeal an initial grievance.Robinson, No. 8:13-cv-2109, Doc. 47 at 2 n.3. This Court went on to explain:
As noted above, the Court has previously dismissed an identical action by Plaintiff on the basis of his failure to exhaust. The only difference with the new action now before the Court is Plaintiff's allegation that he had requested, after the previous action was dismissed, that several of his previous grievances be appealed. It is, however, established that prisoners must follow the procedures in place. The Court has already found that Plaintiff had five days to appeal the
grievances. Regardless of whether his appeal was in proper form, it is clear from Plaintiff's allegations that the appeal was months (almost two years, in fact) too late.[Id. at 3-4 (internal citation omitted).] By the time this Court dismissed Plaintiff's case at number 13-2109, he had already filed twenty-four prior cases, of which at least four-case numbers 11-2285, 04-1262, 02-0353, 01-2170-were dismissed for failure to exhaust. Given the number of cases he had previously filed and the subsequent dismissals for failure to exhaust, Plaintiff was clearly on notice when he filed case number 13-2109 that he must first exhaust his administrative remedies before filing suit in federal court or face dismissal. However, he failed to do so. And, when Plaintiff filed his unexhausted complaint in case number 13-2109, he had already filed a prior case asserting the same unexhausted claims against the same defendants that had been dismissed for failing to exhaust. As such, the Court dismissed the action for failing to state a claim and noting, critically, that Plaintiff had previously filed a case making the same claims that was dismissed for the same reasons. This scenario is precisely what the Fourth Circuit described in Green.
Indeed, the undersigned concludes that this Court's dismissal of Plaintiff's action at case number 13-2109 may properly be treated as a dismissal on the basis of frivolity and/or malice in light of Green, therefore qualifying as a strike, in addition to being a dismissal on the basis of failure to state a claim, which is discussed below. See Green, 454 F.3d at 409-10.
Second, like the scenario described in Thompson, this Court dismissed Plaintiff's unexhausted complaint under Rule 12(b)(6) on defendants' motion to dismiss for failure to state a claim. Further, the Court concluded that the dismissal on that basis was proper based solely on the allegations contained in the Complaint. See Robinson, No. 8:13-cv-2109, Doc. 47 at 2 (“the allegations of [Plaintiff's] complaint indicate that he did not properly appeal his relevant grievances as he was required to do”); 4 (“it is clear from Plaintiff's allegations that the appeal was months . . . too late”). Thus, because the dismissal of Plaintiff's case was for failure to state a claim under Rule 12(b)(6) based on the allegations contained in the complaint, that dismissal counts as a strike under the PLRA. See Thompson, 492 F.3d at 438 (D.C. Cir. 2007); see also Wells v. Brown, 58 F.4th 1347 (11th Cir. 2023) (explaining that, where a plaintiff's failure to exhaust appears on the face of the complaint, the plaintiff has failed to state a claim, and any dismissal on that basis qualifies as a strike under the PLRA); Ball v. Famiglio, 726 F.3d 448, 460 (3d Cir. 2013) (explaining a “dismissal based on a prisoner's failure to exhaust administrative remedies does not constitute a PLRA strike, unless a court explicitly and correctly concludes that the complaint reveals the exhaustion defense on its face and the court then dismisses the unexhausted complaint for failure to state a claim”), abrogated on other grounds by Coleman v. Tollefson, 575 U.S. 532 (2015).
Accordingly, in light of his three strikes, Plaintiff cannot proceed with the instant action under the in forma pauperis statute unless his claims satisfy the exception for imminent physical harm provided by the three-strikes rule. See 28 U.S.C. § 1915(g); Torres v. O'Quinn, 612 F.3d 237, 246 (4th Cir. 2010).
No Imminent Danger
Here, Plaintiff cannot satisfy the § 1915(g) standard of “imminent danger” of serious physical injury. In order to invoke the “imminent danger” exception of § 1915(g), an “inmate must make ‘specific fact allegations of ongoing serious injury, or of a pattern of misconduct evidencing the likelihood of imminent serious physical injury.'” Johnson v. Warner, 200 Fed.Appx. 270, 272 (4th Cir. 2006) (quoting Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003)). Additionally, allegations that are remote, speculative, or hypothetical do not rise to the level of “imminent danger.” See Welch v. Selsky, No. 9:06-cv-00812-LEK-DEP, 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.”); Riches v. Harrelson, No. 6:08-cv-0685-MBS, 2008 WL 1744603, at *3 (D.S.C. Apr. 10, 2008).
Here, the Complaint asserts claims for violations of Plaintiff's due process rights and religious freedom related to Plaintiff's dietary restrictions. However, the allegations in the Complaint do not allege any imminent danger of serious physical injury to satisfy the PLRA's exception to the three-strikes rule. See Bryan v. McCall, No. 5:15-cv-871, 2016 WL 529574, at *3 (D.S.C. Feb. 10, 2016) (evaluating the imminent danger exception). Based on a review of the allegations in the present action, the undersigned finds that the Complaint is devoid of any assertion that Plaintiff's life is in imminent danger and that, even if such an assertion were intended by Plaintiff, it is not by supported by any plausible factual allegations.
Accordingly, Plaintiff's motion to proceed in forma pauperis should be denied. Plaintiff still may seek to litigate the claims in his Complaint, of course, if he pays the full filing fee. The filing fee (set by the Congress and the Judicial Conference of the United States) for a non-habeas civil action is four hundred and two dollars ($402). As a result, Plaintiff must pay the full filing fee of four hundred and two dollars ($402). If Plaintiff timely pays the filing fee, the claims in his Complaint will then be subject to review by the undersigned to determine if service of process should be authorized.
RECOMMENDATION
It is recommended that Plaintiff's motion for leave to proceed in forma pauperis [Doc. 2] be DENIED. It is further recommended that Plaintiff be given twenty-one (21) days from the date the United States District Judge rules on this Report and Recommendation to pay the filing fee of four hundred and two dollars ($402) and that the Clerk of Court withhold entry of judgment until such time for payment expires.
If Plaintiff timely pays the filing fee, this action should be sent to the undersigned Magistrate Judge for further initial review.
If Plaintiff fails to pay the filing fee within the specified time period, it is further recommended that the Complaint be dismissed without prejudice under the three strikes rule of 28 U.S.C. § 1915(g), and that the Clerk of Court enter the required final judgment at the close of the twenty-one day period permitted for payment of the filing fee.
IT IS SO RECOMMENDED.
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, Suite 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).