Opinion
C/A 8:22-cv-03895-JD-JDA
11-08-2022
Dennis Temple, a/k/a Dennis Maurice Temple, Plaintiff, v. Henry McMaster, Governor; Bryan Stirling, Director; Unknown Nelson, Warden; Shane Jackson, Warden; Arenda Thomas, Associate Warden; Unknown Tisdale, Associate Warden; Unknown Brown, Lieutenant; Unknown Wilson, Inmate Grievance Coordination; Cynthia Mcpherson, Commissary Personal; Unknown Smith, Inmate Financial personal, Defendants.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin, United States Magistrate Judge.
Dennis Temple (“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 state inmate in the custody of the South Carolina Department of Corrections (“SCDC”) and is currently incarcerated at the Lee Correctional Institution. 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 allegations. Plaintiff contends that Defendants have violated his rights to due process and equal protection under the Eighth and Fourteenth Amendments to the United States Constitution. [Doc. 1 at 6.] Plaintiff contends he was wrongfully convicted in 2010 and sentenced to a term of imprisonment of 100 years. [Doc. 1-2 at 4.] Plaintiff has been transferred between a number of different prisons while in the custody of SCDC. [Id.] SCDC has been experiencing a shortage of staff and officers at its prisons, resulting in limitations to programs, policies, procedures, and practices within the prisons. [Id.] ¶ 2019, Plaintiff was retaliated against for filing a lawsuit regarding the Character Based Unit (“CBU”) at Perry Correctional Institution, which resulted in him being transferred to Lee Correctional Institution. [Id.] Plaintiff makes a number of allegations concerning the general details of SCDC's CBU program. [ Id. at 4-7.]
Plaintiff's Complaint is comprised of a standard court complaint form [Doc. 1] as well as a typed verified complaint [Doc. 1-2]. Plaintiff has also attached a number of exhibits to his Complaint. [Doc. 1-3.]
In addition to his Complaint, Plaintiff has filed a motion for temporary restraining order and/or preliminary injunction. [Doc. 4.] In his motion, Plaintiff seeks a preliminary injunction with respect to claims he asserts in his Complaint, namely that the Court order Defendants to stop allowing inmates from supervising other inmates, conducting and presiding over disciplinary hearings, and conducting the institutional counts. [Doc. 4-2 at 1-2.] A plaintiff seeking a preliminary injunction must establish all four of the following elements: (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in his favor; and (4) an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); The Real Truth About Obama, Inc. v. Fed. Election Comm'n, 575 F.3d 342, 346-47 (4th Cir. 2009), vacated on other grounds by 559 U.S. 1089 (2010), reinstated in relevant part on remand by 607 F.3d 355 (4th Cir. 2010). Plaintiff has failed to meet the standard for the issuance of a preliminary injunction because, at this stage of the proceedings, he has not shown that he is likely to succeed on the merits of his claims. However, because Plaintiff has not paid the filing fee and the undersigned recommends that his motion for leave to proceed in forma pauperis be denied, the Court will not rule on Plaintiff's motion for preliminary injunction at this time. The Court will address the motion after Plaintiff pays the filing fee.
Plaintiff contends he was forced to deposit his Federal Cares Act stimulus check into his prison E.H. Cooper account. [Id. at 7-9.] Plaintiff contends that inmates in the CBU are given jobs involving supervising other inmates and presiding over other inmates' misconduct hearings. [Id. at 9.] Plaintiff contends that Defendants are denying him socks, underwear, towels, wash cloths, and hygiene supplies because he has money in his prison account. [Id. at 11-12.]
For his injuries, Plaintiff contends that he has had a toothache for months with severe pain, that his teeth were pulled out, and that he is still suffering pain in other teeth that also need to be pulled out. [Doc. 1 at 8.] For his relief, Plaintiff requests a declaratory judgment, a restraining order against Defendants, and money damages. [Doc. 1-2 at 15-16.]
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
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 17 cases in this Court. At least four of Plaintiff's prior cases may be deemed strikes under the PLRA in accordance with the standard set forth in Lomax:
In addition to the present action (case number 22-3895), Plaintiff has previously filed actions at case numbers 19-2659, 19-1492, 18-3258, 17-0952, 15-0652, 14-4832, 143499, 14-1366, 13-3426, 13-0144, 11-0189, 09-2655, 05-2477, 05-0484, 03-3594, 010805.
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.'”).
1. Temple v. McClelland, No. 8:15-cv-0652-JFA-JDA, Doc. 21 (D.S.C. Jul. 27, 2015) (dismissing complaint as frivolous, among other reasons, and designating the dismissal a strike under the PLRA);
2. Temple v. Oconee County, No. 8:14-cv-4832-JFA-JDA, Doc. 22 (D.S.C. Jul. 27, 2015) (dismissing complaint as frivolous, among other reasons, and designating the dismissal a strike under the PLRA);
3. Temple v. Carter, No. 8:14-cv-01366-JFA-JDA, Doc. 22 (D.S.C. Jul. 28, 2014) (dismissing complaint for failure to state a claim on which relief may be granted).
4. Temple v. Oconee County, No. 8:11-cv-00189-MBS-JRM, Doc. 11 (D.S.C. Mar. 29, 2011) (dismissing complaint for failure to state a claim on which relief may be granted).
In light of his more than 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).
Here, Plaintiff's claims do not 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).
Liberally construed, the Complaint appears to assert claims related to Plaintiff's participation in the SCDC CBU program, his access to items from the commissary, and the deposit of a government stimulus check into his inmate trust account. And the allegations in the Complaint simply 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.
To the extent Plaintiff's allegations in the injury section of the standard complaint form concerning his tooth pain and need for his teeth to be pulled can be construed as an assertion that he is in imminent danger, such allegations do not satisfy the PLRA's standard. See, e.g., Barbour v. Stanford, No. 7:10-cv-00243, 2010 WL 2754465, at *1 n.1 (W.D. Va. July 12, 2010) (discussing imminent danger exception to PLRA three-strikes rule and noting “Plaintiff's conclusion that he is at risk for a potential accelerated rate of tooth decay . . . does not indicate that he is under imminent danger”).
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 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.
Plaintiff's attention is directed to the important notice on the next 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 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).