Opinion
C. A. 6:22-cv-03176-HMH-KFM
01-04-2023
Khammesherma Smith, Plaintiff, v. Director Brian, Defendant.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
This matter is before the court on a motion to proceed in forma pauperis filed by the plaintiff (doc. 9). The plaintiff, a state prisoner proceeding pro se, brought this action pursuant to 42 U.S.C. § 1983, seeking damages from the defendants. Pursuant to the provisions of 28 U.S.C. § 636(b), and Local Civil Rule 73.02(B)(2) (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.
ALLEGATIONS
This is a § 1983 action filed the plaintiff, a state prisoner in the custody of the South Carolina Department of Corrections (“SCDC”) and currently housed at Kershaw Correctional Institution (“Kershaw”), brings this action regarding his continued incarceration (doc. 1).
The plaintiff alleges that the defendant has violated his First, Eighth, and Fourteenth Amendment rights as well as his rights as a prisoner (id. at 4). He contends that the defendant has ignored his complaints regarding reinstatement (presumably to probation) as well as unconstitutional actions by SCDC employees (id.). The plaintiff alleges that from April 2022, to September 2022, he has been unlawfully imprisoned and the defendant refuses to let the plaintiff out of prison even though he should be released (id. at 5-6).
The plaintiff alleges that his continued incarceration has caused injuries to his body and spirit (id. at 6). For relief, the plaintiff seeks money damages (id.).
APPLICABLE LAW & ANALYSIS
As a pro se litigant, the plaintiff's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). 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 cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990). Further, the plaintiff is a prisoner under the definition of 28 U.S.C. § 1915A(c), and “seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). Thus, even if the plaintiff had prepaid the full filing fee, this Court is charged with screening the plaintiff's lawsuit to identify cognizable claims or to dismiss the complaint if (1) it is frivolous, malicious, or fails to state a claim upon which relief may be granted, or (2) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A.
As noted above, the plaintiff has filed a motion for leave to proceed in forma pauperis under 28 U.S.C. § 1915 (doc. 9). However, the plaintiff is subject to the “three-strikes” rule of the Prisoner Litigation Reform Act (“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 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.
Here, the plaintiff has more than three actions that were specifically dismissed and designated as strikes under 28 U.S.C. § 1915(g). See Smith v. Campbell, et al., C/A No. 6:22-cv-02384-HMH, at doc. 31 (D.S.C. Dec. 2, 2022) (dismissed and designated a strike under 28 U.S.C. § 1915(g)); Smith v. Logan, et al., C/A No. 6:22-cv-02667-HMH, 2022 WL 14763210 (D.S.C. Oct. 25, 2022) (dismissed and designated a strike under 28 U.S.C. § 1915(g)); Smith v. Tobey, et al., C/A No. 6:22-cv-02666-HMH, 2022 WL 4466696 (D.S.C. Sept. 26, 2022) (dismissed and designated a strike under 28 U.S.C. § 1915(g)); Smith v. The S.C. Dep't of Corrs., et al., C/A No. 6:22-cv-01433-HMH, 2022 WL 4276983 (D.S.C. Sept. 15, 2022) (dismissed and designated a strike under 28 U.S.C. § 1915(g)); Smith v. Cooke, C/A No. 3:22-cv-02136-HMH, 2022 WL 3969591 (D.S.C. Aug. 31, 2022) (dismissed and designated a strike under 28 U.S.C. § 1915(g)).
Accordingly, the plaintiff has received at least three dismissals which count as strikes. 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 is barred from proceeding in this action in forma pauperis unless he has plausibly alleged that he is under “imminent danger of serious physical injury.” 28 U.S.C. § 1915(g); see Hall v. United States of America, C/A No. 20-6848, (4th Cir. Aug. 10, 2022) (noting that allegations of imminent harm based upon delayed or denied medical care can be dismissed when the allegations are “wholly conclusory and lack some basis in the record or complaint”). 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, not that the plaintiff has faced imminent danger in the past. Johnson v. Warner, 200 Fed.Appx. 270, 272 (4th Cir. 2006) (unpublished per curiam opinion). Here, the plaintiff has not alleged any imminent danger of harm. Indeed, his complaint reports dissatisfaction with his continued incarceration and contains only vague and conclusory references to injuries to his body and spirit, which likewise fail to meet the imminent danger standard. As such, the undersigned recommends that the plaintiff's motion to proceed in forma pauperis be denied.
RECOMMENDATION
Now, therefore, based upon the foregoing, IT IS RECOMMENDED that the plaintiff's motion to proceed in forma pauperis (doc. 9) be denied. Should the United States District Judge assigned to this case adopt this recommendation, it is recommended that the plaintiff be provided twenty-one (21) days to pay the filing fee or the case will be dismissed.
IT IS SO RECOMMENDED.
The attention of the parties is directed to the important notice on the following 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 committees 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).