Long v. Horry Cnty. Sheriff's Dep't

1

William V. Long, #238950, a/k/a William Von Long, Plaintiff, v. Horry County Sheriff's Department, Defendant.

C/A No. 4:22-2644-DCC-TER

United States District Court, D. South Carolina

November 1, 2022

REPORT AND RECOMMENDATION.

THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE

This is a civil action filed by a state prisoner, proceeding pro se. Pursuant to 28 U.S.C. § 636(b)(1) and District of South Carolina Local Civil Rule 73.02(B)(2)(e), the undersigned is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the district court.

STANDARD OF REVIEW

Under established local procedure in this judicial district, a careful review has been made of the pro se complaint filed in this case. This review has been conducted pursuant to the procedural provisions of 28 U.S.C. §§ 1915, 1915A, and the Prison Litigation Reform Act of 1996, and in light of the following precedents: Denton v Hernandez, 504 U.S. 25 (1992); Neitzke v Williams, 490 U.S. 319, 324-25 (1989); Haines v Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md House of Corr., 64 F.3d 951 (4th Cir.1995) (en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir.1983).

This court is required to liberally construe pro se complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Such pro se complaints are held to a less stringent standard than those drafted by attorneys. Id.; Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Even under this less stringent standard, however, the pro se complaint is subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which plaintiff could prevail, it should do so, but a district court may not rewrite a complaint to include claims that were never presented, construct the plaintiff's legal arguments for him, or conjure up questions never squarely presented to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985); Small v. Endicott, 998 F.2d 411 (7th Cir. 1993); Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999). 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 currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990) (The “special judicial solicitude” with which a [court] should view such pro se complaints does not transform the court into an advocate.).

DISCUSSION

Plaintiff has filed a Motion for Leave to Proceed in forma pauperis under 28 U.S.C. § 1915. (ECF No. 7). However, Plaintiff has already received three strikes and was denied in forma pauperis in 2021. See Long v. Suggs, No 4:20-cv-3128-DCC(counting strikes).

In light of Plaintiff's prior dismissals as discussed in 20-3128, he cannot now proceed with the instant Complaint in forma pauperis unless his claim satisfies the exception for imminent danger of serious physical injury provided by the three-strikes rule. See 28 U.S.C. § 1915(g); Hall v. U.S., 44 F.4th 218 (4th Cir. 2022). This Complaint does not fit within this exception to enable Plaintiff to proceed in forma pauperis because Plaintiff does not allege imminent danger of serious physical injury. Courts have held that the “imminent danger” exception to § 1915(g)'s “three strikes” rule must be construed narrowly and applied only “for genuine emergencies,” where “time is pressing” and “a threat ... is real and proximate” to the alleged official misconduct. Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002).

As such, to satisfy the imminent danger element, Plaintiff must have alleged facts showing that he was in imminent danger at the time the complaint was filed; allegations that the prisoner has faced imminent danger in the past are insufficient to trigger the exception to section 1915(g). See Johnson v. Warner, 200 Fed.Appx. 270, 272 (4th Cir. 2006); Abdul-Akbar v. McKelvie, 239 F.3d 307,314 (3d Cir. 2001). Past danger or threats of harm on their own are insufficient to meet the exception. Hall, 44 F.4th at 224. The imminent danger exception in § 1915(g) “focuses on the risk that the conduct complained of threatens continuing or future injury, not whether the inmate deserves a remedy for past misconduct.” Johnson v. Warner, 200 Fed.Appx. at 272 (quoting Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003)).

Plaintiff's allegations do not meet the imminent danger requirement of § 1915(g). “The mere fact that Plaintiff is in prison is insufficient to establish an imminent danger of serious physical injury.” See e.g., Blakely v. White, No. 6:15-03782-MGL, 2015 WL 6549172 (D.S.C. October 26, 2015)(allegations happened 17 years prior). Plaintiff's allegations are regarding his 2006 arrest which he refers to as kidnapping; many of Plaintiff's civil actions in the past have repeated these allegations regarding the 2006 arrest. Plaintiff alleges his injury is serving prison time and thus not being able to make money. (ECF No. 1).

Therefore, to proceed with his Complaint, Plaintiff must pay the full filing fee.

Recommendation

Accordingly, it is recommended that Plaintiffs motion for leave to proceed in forma pauperis (ECF No. 7) be denied. To proceed with this Complaint, Plaintiff must pay the full filing fee (currently $350) plus the $52 administrative fee for a total fee due of $402.^[1]

It is further recommended that the Court give Plaintiff fourteen(14) days from the date the United States District Judge rules on this Report and Recommendation (or a specific date determined by the United States District Judge) to pay the full $402 filing fee, in which event this matter can be returned to the undersigned magistrate judge to conduct a review of Plaintiff's complaint.^[2] However, if Plaintiff fails to pay the full $402 filing fee within the time period set by the United States District Judge, or seek an extension of time to do so, it is further recommended that, by a self-executing Order or by additional Order of this District Court, the complaint be dismissed without prejudice and without issuance of service of process.

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:

Failure to timely file specific written...