Martin v. Lassley

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Anthony Fred Martin, #242768, Plaintiff, v. T. Lassley, Susan Duffy, Donald Hagan, G. Palmer, B. Rogers, Curtis Early, Defendants.

C. A. No. 4:23-2857-JD-TER

United States District Court, D. South Carolina

August 3, 2023

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. 2). However, based on Lomax v. Ortiz-Marquez, 140 S.Ct. 1721 (2020) Plaintiff is subject to the “three-strikes” rule of the 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. § l 915(g)(emphasis added). Regardless of dismissal being with or without prejudice, a “strike” is based on the dismissal basis alone. Lomax, 140 S.Ct. at 1725. “A dismissal of a suit for failure to state a claim counts as a strike, whether or not with prejudice.” Id. at 1727. The following is an accounting of dismissals of suits for failure to state a claim, which count as strikes pursuant to Lomax. The language of the statute implicates such is a mandatory function of screening prisoner actions. 4:18-cv-1937-DCN

In 2018, Plaintiff's § 1983 action regarding denial of access to court was summarily dismissed with prejudice for failure to state a claim upon which relief could be granted under § 1915(e)(2(B)(ii). Martin v. Rae, No. 4:18-cv-1937-DCN.

4:18-cv-317-DCN

In 2018, the Fourth Circuit Court of Appeals affirmed the summary dismissal of Plaintiff's action that was a duplicate filing of No. 4:15-cv-4947-DCN and was also dismissed for failure to state a claim upon which relief could be granted as to Plaintiff's due process claim under § 1915(e)(2)(B)(ii). Martin v. Duffy, No. 4:18-cv-217-DCN.

4:15-cv-2104-DCN

In 2015, the Fourth Circuit of Appeals dismissed Plaintiff's appeal of the summary dismissal under § 1915(e)(2)(B) of his § 1983 action for failure to state cognizable due process and equal protection claims. Martin v. Duffy, No. 4:15-cv-2104-DCN.

4:15-cv-1569-DCN

In 2015, Plaintiff's § 1983 action was summarily dismissed for failure to state a claim upon which relief can be granted. Martin v. Merchant, No. 4:15-cv-1569-DCN.

4:13-cv-2187-DCN

In 2013, Plaintiff's § 1983 action was summarily dismissed under § 1915(e)(2)(B) based on judicial immunity. Martin v. Gossett, No. 4:13-cv-2187-DCN.

4:13-cv-2067-DCN

In 2014, the Fourth Circuit Court of Appeals affirmed the summary dismissal of Plaintiff's § 1983 action for failure to state a claim upon which relief could be granted under § 1915(e)(2)(B). Martin v. Byars, No. 4:13-cv-2067-DCN.

4:13-cv-1568-DCN

In 2014, the Fourth Circuit Court of Appeals affirmed the summary dismissal under § 1915(e)(2)(B) of Plaintiff's § 1983 action for failure to state a claim upon which relief could be granted under the Eighth Amendment. Martin v. Blinkley, No. 4:13-cv-1568-DCN.

4:13-cv-1567-DCN

In 2014, the Fourth Circuit Court of Appeals affirmed the summary dismissal under § 1915(e)(2)(B) of Plaintiff's § 1983 action for failure to state a claim upon which relief could be granted under the Eighth Amendment. Martin v. McCauley, No. 4:13-cv-1567-DCN.

4:13-cv-1016-DCN

In 2013, Plaintiff's § 1983 action was summarily dismissed under § 1915(e)(2)(B) for failure to state a claim upon which relief could be granted as to allegations regarding two defendants and alleged claims of conspiracy and equal protection. Martin v. Byars, No. 4:13-cv-1016-DCN.

Plaintiff has received at least three dismissals for failure to state a claim, thus accumulating “three strikes.” See e.g. Ackbar v. Jones, 7:20-cv-825-RMG, No. 20-6880 (4th Cir. Feb 26, 2021, ECF No. 13)(rescinding prior grant of in forma pauperis and counting prior actions dismissed for failure to state a claim); Pitts v. South Carolina, 65 F.4th 141 (4th Cir. 2023)(holding a district court may not contemporaneously rule at the time of a summary dismissal that such dismissal counts as a strike in the future; instead, the fourth action is where the court is to look backwards and evaluate the prior suits).

The three-strikes rule was enacted to bar prisoners, such as the Plaintiff here, who have filed prior litigation in a federal court that has been dismissed with or without prejudice for actions that are “frivolous, malicious, or fails to state a claim upon which relief may be granted,” from pursuing certain types of federal civil litigation without prepayment of the filing fee. “The litigant here has accumulated three prior dismissals on statutorily enumerated grounds. Consequently, a court may not afford him in forma pauperis status with respect to his additional civil actions.” Coleman v. Tollefson, 575 U.S. 532 (2015).

In light of Plaintiff's prior dismissals as discussed above, 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).

This Complaint^[1] does not fit within this exception to enable Plaintiff to proceed in forma pauperis because Plaintiff can not allege imminent danger of serious physical injury based on the alleged claims presented. Plaintiff's allegations involve events in 2014 that Plaintiff has already received a jury trial on. (ECF No. 1 at 6). Plaintiff appears to be dissatisfied with rulings in that prior action. (ECF No. 1-1 at 3-4). The “imminent danger” must “exist contemporaneously when the action is filed,” Hall v. United States, 44 F.4th 218, 224 (4th Cir. 2022), as “Congress intended that a three-strikes prisoner have opportunity to ask the court for its aid in addressing a danger that is close at hand, not a past infraction.” Meyers v. Comm'r of Soc. Sec. Admin., 801 Fed.Appx. 90, 96 (4th Cir. 2020)(prisoner case).Plaintiff's allegations do not meet the imminent danger requirement of § 1915(g).

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

Recommendation

Accordingly it is recommended that Plaintiff's motion for leave to proceed in forma pauperis (ECF No. 2) 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.^[2]

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.^[3] 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...