Rogers v. Rankin

• Decision Date: 01 November 2018
• Docket Number: Case No. 3:18-cv-2905-TMC-MGB
• Court: U.S. District Court — District of South Carolina
• Parties: Hayward L. Rogers, #278510, Plaintiff, v. Casey N. Rankin, Alan M. Wilson, and State of South Carolina, Defendants.

Hayward L. Rogers, #278510, Plaintiff, v. Casey N. Rankin, Alan M. Wilson, and State of South Carolina, Defendants.

Case No. 3:18-cv-2905-TMC-MGB

DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISION

November 1, 2018

REPORT AND RECOMMENDATION

Hayward Rogers ("Plaintiff") has filed a civil action pursuant to 42 U.S.C. § 1983 against three Defendants, challenging the validity of his 2001 convictions. (DE#1, Complaint). He is proceeding pro se and has applied to proceed in forma pauperis ("IFP"). Plaintiff is a state prisoner incarcerated at McCormick Correctional Institution located in South Carolina. Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(D.S.C.), the United States Magistrate Judge is authorized to review the record and to submit findings and recommendations to the United States District Judge. Upon careful review, including a review of Plaintiff's extensive litigation history, the Magistrate Judge recommends that the Plaintiff has accrued three strikes and should be denied permission to proceed IFP; but that Plaintiff should be given twenty-one (21) days in which to pay the filing fee, for the following reasons:

I. Relevant Law

A. The PLRA's Three Strikes Provision

The Prison Litigation Reform Act ("PLRA") provides in relevant part that:

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). The language of the statute expressly indicates that it applies to civil actions and to appeals. See, e.g., Banks v. Hornak, 698 F.App'x 731, 2017 WL 2788587 (June 27, 2017) ("[W]e conclude that Petitioner is barred from proceeding in forma pauperis on appeal by operation of Section 1915(g)."), cert. denied, 138 S.Ct. 483 (Nov. 27, 2017). The PLRA's three-strikes provision operates to bar certain prisoners from proceeding IFP, but does not provide a basis to dismiss claims. Id. at n.2, citing 28 U.S.C. § 1915(g).

The present Plaintiff has previously been given express written warnings about the possible consequences of the PLRA's three-strike provision. See, e.g., Rogers v. Wilson et al., Case No. 2:16-cv-558-TMC-MGB (see DE#17 at 3, "Plaintiff is warned that if he continues to file pleadings that are frivolous, malicious, or fail to state a claim for which relief may be granted, he risks the accumulation of three strikes against him and the resulting denial of future requests for IFP status, absent exceptional circumstances.").

B. Relevant Case Law

In 2009, the Fourth Circuit Court of Appeals held that for a dismissal of a civil action to count as a strike, the dismissal must be "with prejudice." McLean v. United States, 566 F.3d 391, 399 (4th Cir. 2009). Therefore, some of Plaintiff's prior strikes based on dismissals without prejudice may no longer be counted as strikes. A prisoner's entire action must be dismissed on one or more of the enumerated grounds of § 1915(g) in order to count as a strike. Tolbert v. Stevenson, 635 F.3d 646 (4th Cir. 2011) ("the section speaks of prior actions dismissed as frivolous, malicious, or for failure to state a claim"); Everett v. Whaley, 504 F.App'x 245, 246 (4th Cir. 2013) (same); Rivera v. Stirling, Case No. 8:15-cv-4482-JMC-JDA, 2016 WL 4059151 (D.S.C. July 27, 2016) (same, finding that prisoner had three strikes), affirmed, 672 F.App'x 264 (4th Cir. Dec. 22, 2016), reh'g en banc denied (Jan. 18, 2017).

The Fourth Circuit Court of Appeals has further instructed that an order of summary judgment may count as a strike for purposes of the PLRA's three-strikes provision, so long as the case is being dismissed for enumerated reasons of the three-strike provision, i.e. the case is "frivolous, malicious, or fails to state a claim." Blakely v. Wards, 738 F.3d 607, 609 (4th Cir. 2013) (en banc), as amended (Oct. 22, 2013); see also Miller v. Hooks, 2015 WL 2452927, *2 n.4 (S.D.Ga. 2015) (citing Blakely and observing that "the Fourth Circuit's position in this regard is persuasive"). The Fourth Circuit Court of Appeals indicated that a district court's order of dismissal need not include language formally designating a strike. Blakely, 738 F.3d at 631, n.3 ("Whether a court rings the PLRA bell in its opinion or judgment order is immaterial, so long as the summary judgment dismissal is explicitly predicated on one of the three grounds enumerated in Section 1915(g)."). In other words, if the dismissal of the case meets the criteria of Section 1915(g), it counts as a strike, regardless of whether the judgment expressly designates a strike.

"If a prisoner has already had three cases [or appeals] dismissed as frivolous, malicious, or for failure to state a claim for which relief may be granted, the prisoner generally may not proceed IFP but rather must pay up-front all filing fees for his subsequent suits." Blakely, 738 F.3d at 609. After the Fourth Circuit's en banc decision in Blakely, district courts within this circuit have reviewed a prisoner's past § 1983 dismissals, found three valid strikes for dismissals with prejudice, and determined that the prisoner was not entitled to proceed IFP. For example, in Cabbagestalk v. SC Dept. of Corrections, Case No. 5:13-cv-3036-RMG-KDW, 2014 WL 1093094 (D.S.C. March 14, 2014), the District Court found that the prisoner had accrued "three strikes under 28 U.S.C. § 1915(g) and therefore must pay the Court's filing fee or show that he is under imminent danger of serious physical injury." The Court gave him "fifteen days from the date of the entry of this order to pay the Court's filing fee" and ordered that "if Plaintiff fails to pay the fee within this fifteen-day period, the Clerk shall dismiss this action without prejudice and without issuance and service of process." (Id.).

Similarly, in Odom v. Hailey, the District Court summarily dismissed a case because the prisoner had accrued three valid strikes under the applicable statute and was "now barred from proceeding in forma pauperis in any civil action or appeal filed while he is incarcerated or detained in any facility unless he is under imminent danger of serious physical injury." Odom v. Haley, Case No. 5:15-cv-1951-RMG-KDW, 2015 WL 3843321, *1 (D.S.C. May 29, 2015), adopted by, 2015 WL 3865814, *1 (D.S.C. June 19, 2015), affirmed as modified, 627 F.App'x 250 (4th Cir. Dec. 30, 2015).

Where a prisoner has three strikes and does not allege that he is in any imminent danger, some courts in judicial districts within the Fourth Circuit have immediately dismissed the prisoner's § 1983 action without prejudice to the prisoner's ability to re-file the complaint upon payment of the full filing fee. See, e.g., Morales v. White, 2017 WL 489430 (W.D.N.C. Feb. 6, 2017) (district court determined that prisoner had filed three previous § 1983 complaints, all of which were dismissed as frivolous, malicious or for failure to state a claim, and therefore, could no longer proceed IFP; the case was dismissed without prejudice to the prisoner's ability to refile after paying the full filing fee); Shuler v. Hargrave, 2013 WL 5962987 (W.D.N.C. Nov. 7, 2013) (same), appeal dism'd (4th Cir. Feb 7, 2014).

Other courts within the Fourth Circuit, including courts within this judicial district, have given the plaintiff a specified period of time in which to pay the filing fee and ordered that the case would be dismissed if the filing fee was not timely paid. See, e.g., Cabbagestalk, 2014 WL 1093094, *1 (ordering that case would be dismissed unless plaintiff paid filing fee within 15 days); Blakely v. White, Case No. 6:15-03782-MGL-KDW, 2015 WL 6549546 (D.S.C. Oct. 13, 2015), adopted, 2015 WL 6549172 (D.S.C. Oct. 27, 2015) (same, giving plaintiff 21 days to pay the full filing fee).

C. Discretionary Authority to Deny IFP

It should also be pointed out that regardless of whether a prisoner has formally accrued three strikes for purposes of 28 U.S.C. § 1915(g), the Fourth Circuit Court of Appeals has emphasized that federal courts also have "discretionary authority to deny IFP status to prisoners who have abused the privilege" of proceeding IFP. See Tolbert, 635 F.3d at 653 (citing Butler v. Dept. of Justice, 492 F.3d 440, 444-45 (D.C. Cir. 2007) (explaining that federal district courts have "discretionary authority to deny IFP status to prisoners who have abused the privilege").

In Tolbert, the Fourth Circuit Court of Appeals observed that such authority derives from the discretionary language of the PLRA's filing-fee provision, 28 U.S.C. § 1915(a) ("any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees or security therefor") (italic added) and from the general supervisory authority of federal courts to manage their own dockets. Id.; Blakely, 738 F.3d at 631 (Judge Duncan concurring, "Nowhere does the PLRA curtail courts' preexisting discretionary authority;" and Judge Gregory, joining Judge Mott's dissent, indicating "I write separately to clarify that courts do retain discretion under limited circumstances to deny [IFP] status under § 1915(a)" and that such discretion is appropriate when there is a "longstanding, clear pattern of abusive filings."); Butler, 492 F.3d at 445. In fact, the United States Supreme Court has indicated that because "[t]he goal of fairly dispensing justice ... is compromised when the Court is forced to devote its limited resources to the processing of repetitious and frivolous requests," courts have "a duty to deny in forma pauperis status to those individuals who...