Opinion
2:22-cv-00724-RMG-MGB
03-17-2022
Antrell Fordham, #262332, Plaintiff, v. J. Stoney Drake, and Sergeant Hudson, Defendants.
REPORT AND RECOMMENDAITON
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
Antrell Fordham (“Plaintiff”), a state prisoner proceeding pro se, brings this civil action alleging violations of his constitutional rights pursuant to 42 U.S.C. § 1983. At issue before the Court are Plaintiff's motions for leave to proceed with this action in forma pauperis (“IFP”). (Dkt. Nos. 2, 7.) Under 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02(B)(2) (D.S.C.), the assigned United States Magistrate Judge is authorized to review all pretrial matters in this case and to submit findings and recommendations to the United States District Judge. For the reasons discussed below, the undersigned finds that Plaintiff is subject to the three-strikes rule under the Prison Litigation Reform Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321-71 (1996) (“PLRA”), and therefore recommends that the Court deny his motions to proceed IFP.
Although Plaintiff filed two separate motions to proceed in forma pauperis, the filings are largely duplicative and contain comparable responses. (See Dkt. Nos. 2, 7.)
BACKGROUND
Plaintiff is presently serving state sentences for violations of S.C. Code § 16-11-380 (entering a bank with the intent to steal) and § 24-13-410 (unlawful escape). His current projected release date is July 12, 2022. Throughout the course of his incarceration, Plaintiff has filed numerous civil actions in this District, many of which have been subject to summary dismissal for failure to state a claim. Plaintiff now brings yet another civil action alleging violations of his constitutional rights pursuant to 42 U.S.C. § 1983. Although the allegations are sparse, Plaintiff appears to allege that Defendants violated his Fourteenth Amendment rights by depriving him of certain personal property-including two t-shirts, glasses, two books, and “hygiene” items- following his admission to Kirkland Correctional Institution's psychiatric hospital in January 2022. (See Dkt. No. 1 at 4-6; Dkt. No. 5-1 at 1-2.) Plaintiff claims that inmates are entitled to these items pursuant to the facility's “client property and privileges” memorandum, and therefore asks that Defendants provide him with the same. (Dkt. No. 1 at 4-6.) With respect to injuries, Plaintiff contends that he has suffered “mental and physical anguish, ” including difficulty eating and sleeping, as a result of Defendants' purported refusal to provide the requested property. (Id. at 6.)
See https://public.doc.state.sc.us/scdc-public/ (last visited March 16, 2022); see also Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining that courts “may properly take judicial notice of matters of public record”); Tisdale v. South Carolina Highway Patrol, No. 0:09-cv-1009-HFF-PJG, 2009 WL 1491409, at *1 n.1 (D.S.C. May 27, 2009), aff'd, 347 Fed.Appx. 965 (4th Cir. 2009) (noting that the court may also take judicial notice of factual information located in postings on government web sites).
See, e.g., Fordham v. Bachman, Case No. 2:16-cv-00249-RMG; Fordham v. Bachman, Case No. 2:16-cv-00945-RMG; Fordham v. McFadden, Case No. 2:15-cv-00089-RMG; Fordham v. McFadden, Case No. 2:13-cv-02596-RMG; Fordham v. SCDC, Case No. 2:13-cv-00875-CMC; Fordham v. Smith, Case No. 8:06-cv-00807-CMC. For a full list of civil actions filed by Plaintiff in the District of South Carolina, see infra p. 3, n.5.
APPLICABLE LAW
The PLRA requires that this Court 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). As part of this screening process, the PLRA limits the ability of prisoners to file civil actions without prepayment of filing fees under 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); see also Graham v. Riddle, 554 F.2d 133, 134-35 (4th Cir. 1977) (explaining that the court has the authority to deny cost-free filing where the plaintiff is “abus[ing] the process of the courts” by filing frivolous, repetitive complaints). Without a showing of imminent danger, the prisoner must prepay the filing fee in full in order to proceed with his claims. 28 U.S.C. § 1915(g).
In Lomax v. Ortiz-Marquez, the Supreme Court abrogated the McLean holding that a dismissal without prejudice for failure to state a claim does not constitute a strike under the PLRA. See Lomax v. Ortiz-Marquez, 140 S.Ct. 1721, 1724 (2020) (holding that regardless of whether the dismissal is with or without prejudice, the dismissal of a prisoner's civil lawsuit, for failure to state a claim, counts as a strike under the PLRA's three-strikes rule for purposes of considering IFP status).
DISCUSSION
As demonstrated above, Plaintiff is a prolific litigant who has now filed at least fifteen unsuccessful civil actions in this Court. Notably, at least three of Plaintiff's prior cases have constituted “strikes” under the PLRA: Ford v. Bachman, Case No. 2:16-cv-00249-RMG, Dkt. No. 10 (D.S.C. April 26, 2016); Fordham v. Bachman, Case No. 2:16-cv-00945-RMG, Dkt. No. 10 (D.S.C. April 26, 2016); and Fordham v. Coker, Case No. 8:05-cv-02230-CMC, Dkt. No. 33 (D.S.C. Nov. 29, 2006). Consequently, this Court previously determined that Plaintiff is subject to the three-strikes rule and may no longer proceed IFP absent a showing of imminent physical harm. See Fordham v. Bachman, Case No. 2:18-cv-01161-RMG, Dkt. No. 14 (D.S.C. Sept. 7, 2018).
See Fordham v. Bachman, Case No. 2:18-cv-01161-RMG; Fordham v. McCree, Case No. 2:18-cv-00345-RMG; Fordham v. McFadden, Case No. 2:17-cv-01853-RMG; Fordham v. Bachman, Case No. 2:16-cv-00249-RMG; Fordham v. Bachman, Case No. 2:16-cv-00945-RMG; Fordham v. McFadden, Case No. 2:15-cv-00089-RMG; Fordham v. Fleismann, Case No. 6:14-cv-01093-RMG; Fordham v. McFadden, Case No. 2:13-cv-02596-RMG; Fordham v. SCDC, Case No. 2:13-cv-00875-CMC; Fordham v. Moore, Case No. 2:12-cv-00974-MGL; Fordham v. Stahl, Case No. 8:08-cv-04110-CMC; Fordham v. SCDC, Case No. 2:07-cv-02828-TLW; Fordham v. Smith, Case No. 8:06-cv-00807-CMC; and Fordham v. Coker, Case No. 8:05-cv-02230-CMC.
In keeping with this holding, the undersigned finds that Plaintiff cannot proceed IFP in the instant case unless his claims satisfy the exception for imminent physical harm provided by the three-strikes rule. See 28 U.S.C. § 1915(g). To invoke the “imminent danger” exception under § 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). Allegations that are vague, speculative, or hypothetical do not rise to the level of “imminent danger.” See Smith v. Geise, No. 3:16-cv-3230-TMC-BM, 2017 WL 1047250, at *3 (D.S.C. Jan. 17, 2017), adopted, 2017 WL 1035962 (D.S.C. Mar. 17, 2017) (noting that “[g]eneral and vague allegations of harm and unspecific references to injury, even when liberally construed, are insufficient” to invoke the “imminent danger” exception); 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.”).
Here, Plaintiff has neither alleged nor shown that he is in imminent danger of serious physical harm. Rather, Plaintiff makes the general assertion that he is “suffering mental and physical anguish” as a result of Defendants withholding several of his personal items. (Dkt. No. 1 at 6.) Although Plaintiff cites difficulty eating and sleeping in support of this contention, his alleged injuries are vague and mostly of a mental and emotional nature. As this Court previously warned Plaintiff, allegations of emotional “hardship” generally do not establish imminent danger of serious physical injury-especially when those allegations are cursory, at best. See Fordham v. Bachman, Case No. 2:18-cv-01161-RMG, Dkt. No. 14 at 2 (D.S.C. Sept. 7, 2018); see also Merriweather v. Reynolds, 586 F.Supp.2d 548, 552 (D.S.C. 2008), 466 Fed.Appx. 185, 186 (4th Cir. 2012) (noting that allegations of mental or emotional damages do not establish imminent danger of physical harm for purposes of the three-strikes rule); Bryan v. McCall, No. 5:15-cv-871, 2016 WL 529574, at *3 (D.S.C. Feb. 10, 2016) (finding plaintiff's allegations of stress, anxiety, and disruption of his eating and sleeping cycles insufficient to establish imminent danger of serious physical harm); Smith v. Ward, No. 9:13-cv-1651-TMC, 2013 WL 5308799, at *5 (D.S.C. Sept. 18, 2013) (finding plaintiff's references to “mental anguish” and “sleep disorders” insufficient to satisfy the imminent danger exception).
The undersigned also notes that some of Plaintiff's injuries may be self-inflicted, as supplemental records suggest that he initiated a “hunger strike” on January 28, 2022, in response to the alleged deprivation of his personal property. (Dkt. No. 5-1 at 2.)
Because Plaintiff cannot rely on bare, conclusory allegations of “physical and mental anguish” to demonstrate imminent danger of serious physical harm, the undersigned finds that the three-strikes rule bars Plaintiff's motions to proceed IFP. (Dkt. Nos. 2, 7.) Plaintiff still may proceed with his Complaint by paying the full filing fee for a non-habeas civil action. If Plaintiff timely pays the filing fee, the claims in his Complaint will then be subject to initial review pursuant to 28 U.S.C. § 1915A to determine if service of process should be authorized. See Green v. Young, 454 F.3d 405, 407 (4th Cir. 2006).
It is worth noting that regardless of whether Plaintiff is statutorily barred from proceeding in forma pauperis, the Fourth Circuit has held that courts also have “discretionary authority to deny [in forma pauperis] status to prisoners who have abused the privilege even when three strikes are not present.” Tolbert v. Stevenson, 635 F.3d 646, 653 (4th Cir. 2011) (citing Butler v. Dept. of Justice, 492 F.3d 440, 444-45 (D.C. Cir. 2007)). Accordingly, this Court may also deny Plaintiff's motions to proceed in forma pauperis pursuant to this discretionary authority.
Plaintiff must pay the standard $350.00 filing fee and the additional $52.00 administrative fee set by the Judicial Conference. The $402.00 check for the filing fee should be made payable to “Clerk, U.S. District Court.”
CONCLUSION
It is therefore RECOMMENDED that Plaintiffs motions to proceed in forma pauperis (Dkt. Nos. 2, 7) be DENIED. It is further recommended that Plaintiff be given twenty-one days from the date the United States District Judge rules on this Report and Recommendation to pay the filing fee and that the Clerk of Court withhold entry of judgment until such time for payment expires.
If Plaintiff pays the filing fee within the prescribed period of time, the Clerk of Court should forward this action to the undersigned for further initial review to determine if service of process should be authorized. If Plaintiff fails to pay the filing fee, however, it is further RECOMMENDED that this action be dismissed without prejudice pursuant to the three-strikes rule under 28 U.S.C. § 1915(g).
IT IS SO RECOMMENDED.
Plaintiffs 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 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).