Opinion
C/A No. 8:18-2314-BHH-JDA
09-21-2018
James L. Roudabush, Jr., #82038-083, Plaintiff, v. Mark Inch, et al., Defendants.
REPORT AND RECOMMENDATION
related to Three Strikes Plaintiff
James L. Roudabush, Jr. ("Plaintiff"), proceeding pro se, filed the instant action pursuant to Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971), alleging violations of his civil rights. [Docs. 1, 1-3.] 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 currently incarcerated at the Edgefield Federal Correctional Institution, and he files this action requesting leave to proceed in forma pauperis under 28 U.S.C. § 1915. [Doc. 8.] However, Plaintiff is subject to the "three strikes" rule and, for the reasons explained below, it is recommended that the motion to proceed in forma pauperis be denied and that the Complaint be dismissed unless Plaintiff timely pays the full filing fee.
BACKGROUND
Plaintiff brings this action alleging various violations by prison staff. The Court notes that Plaintiff's allegations in this case are similar to allegations made by him in Roudabush v. Maddox, et al., Case No. 8:17-cv-3254 (Bivens action, filed December 4, 2017). Prison staff members are interfering with and rejecting Plaintiff's mail. [Doc. 1 at 3.] Prison staff members are refusing to respond to Plaintiff's requests to see mental health professionals. [Id. at 3-4.] Prison staff members are not allowing medical staff to visit Plaintiff in the "SHU" where he is currently housed. [Id. at 4.] Plaintiff has been harassed and verbally abused with regard to his sexual orientation. [Id. at 5.] Plaintiff's rights to freedom of religion have been abridged. [Id.] Plaintiff has been subjected to discrimination based on his race and sexual orientation because Plaintiff is "a gay, white man who was friends with a large group of black males." [Id. at 6.]
Plaintiff has filed grievances, which have been returned, and the prison does not provide any administrative remedy options for inmates in the "SHU." [Id. at 7.] Plaintiff has been denied access to a counselor, case manager, and unit manager, which is the result of retaliation for filing lawsuits against prison staff members. [Id.] Plaintiff has made complaints about the denial of medical care and about his own safety, but no investigation has been conducted and his requests have been denied. [Id. at 8-9.] For his relief, Plaintiff seeks money damages and for the prison staff members to be criminally prosecuted. [Id. at 9.]
LAW
The Prison Litigation Reform Act of 1996, Pub.L. No. 104-134, 110 Stat. 1321-71 (1996) ("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. McLean v. United States, 566 F.3d 391, 393 (4th Cir. 2009). 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 Act's 'three strikes' provision requires that the prisoner demonstrate imminent danger of serious physical injury in order to proceed without prepayment of fees." McLean, 566 F.3d at 393-94 (citing 28 U.S.C. § 1915(g)).
In evaluating whether a prior dismissal for failure to state a claim qualifies as a "strike" under § 1915(g), the district court must determine whether the prior dismissal was "one that constituted an adjudication on the merits and prejudiced the filing of a subsequent complaint with the same allegations." McLean, 566 F. 3d at 396 (noting, by contrast, that a dismissal without prejudice for failure to state a claim is not an adjudication on the merits). Accordingly, a dismissal without prejudice for failure to state a claim does not count as a strike. Id. at 397.
The PLRA's "three strikes" rule was enacted to bar prisoners, such as Plaintiff, who have filed prior frivolous litigation in a federal court from pursuing certain types of federal civil litigation without prepayment of the filing fee. Id. 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 is subject to the "three strikes" rule under 28 U.S.C. § 1915(g). Plaintiff is a "frequent filer" who has filed more than 100 cases and appeals in various courts around the country. Since December 4, 2017, Plaintiff has filed fifteen cases in this Court at Case Nos. 8:17-cv-3254, 8:17-cv-3359, 8:17-cv-3417, 8:17-cv-3466, 8:18-cv-311, 8:18-cv-1045, 8:18-cv-1046, 8:18-cv-1113, 8:18-cv-1378, 8:18-cv-1599, 8:18-cv-1818, 8:18-cv-1984, 8:18-cv-2070, 8:18-cv-2116, and 8:18-cv-2314.
On February 19, 2016, the United States Court of Appeals for the Third Circuit issued a per curium unpublished opinion noting that, as of that day (nearly two years ago), Plaintiff had "filed over 90 civil actions and 30 appeals over the years." Roudabush v. Warden Fort Dix FCI, 640 F. App'x 134, 135 (3rd Cir. 2016). This Court conducted a PACER search and found that the number of cases filed by Plaintiff is now more than 100.
This Court has previously found that Plaintiff has three qualifying strikes under § 1915(g). See Roudabush v. Antonelli, No. 8:17-cv-3466, Docket Entry No. 13 (D.S.C. Mar. 7, 2018). Plaintiff's three qualifying strikes under the PLRA in accordance with the standard set forth in McLean are set forth below:
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.'" (alterations omitted)); Carter v. Hicks, No. 3:06-cv-1791-TLW-JRM, 2007 WL 1377661, at *2 (D.S.C. May 7, 2007) (noting District Court may take judicial notice of other cases in which a strike has been entered).
1. Roudabush v. Hylton, No. 2:15-cv-376, ECF No. 9 (E.D. Va. Sept. 2, 2015), affirmed, 635 F. App'x 114 (4th Cir. 2016) (strike because case dismissed for failure to state a claim pursuant to 28 U.S.C. § 1915A(b)(1));In light of his three "strikes," Plaintiff cannot proceed with the instant Complaint under the in forma pauperis statute unless his claim satisfies 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).
2. Roudabush v. Kopelove, No. 2:05-cv-348, ECF No. 3 (E.D. Va. June 9, 2005), appeal dismissed, No. 05-6945 (4th Cir. Sept. 12, 2005) (strike because case dismissed as frivolous);
3. Roudabush v. Johnson, No. 7:05-cv-691, ECF No. 29, 2006 WL 270020 (W.D. Va. Feb. 3, 2006) (strike because complaint dismissed as frivolous, malicious, or failing to state a claim for relief pursuant to 28 U.S.C. § 1915A(b)(1)).
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 F. App'x 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).
Plaintiff does not allege, and nothing in the record suggests, that he is in any imminent danger. The alleged misconduct from which Plaintiff seeks relief relates only to past misconduct and the allegations in the Complaint simply do not allege any imminent danger of serious physical injury. See Bryan v. McCall, No. 5:15-cv-871, 2016 WL 529574, at *3 (D.S.C. Feb. 10, 2016). 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.
Therefore, in order for Plaintiff to proceed with the claims in his Petition, he must pay the full filing fee. Effective May 1, 2013, the Judicial Conference of the United States raised the filing fee for a civil case. The filing fee (set by the Congress and the Judicial Conference of the United States) for a non-habeas civil action is now four hundred dollars ($400). As a result, Plaintiff must pay the full filing fee of four hundred dollars ($400). If Plaintiff timely pays the filing fee, the claims in his Petition 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. 8] 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 dollars ($400) 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 for further initial review.
If Plaintiff fails to pay the filing fee within the specified time period, it is further recommended that the Petition 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.
s/ Jacquelyn D. Austin
United States Magistrate Judge September 21, 2018
Greenville, South Carolina
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
300 East Washington Street, Room 239
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).