United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
E. JOHNSTON, UNITED STATES DISTRICT JUDGE.
before the Court are Plaintiff's Application to Proceed
without Prepayment of Fees and Costs, (ECF No. 1), and Motion
to Proceed in Forma Pauperis. (ECF No. 2.) Plaintiff, a West
Virginia inmate incarcerated at the Huttonsville Correctional
Center (“HCC”), initiated this action by filing a
Complaint on June 29, 2016. A verified Amended Complaint was
filed on October 6, 2016, (ECF No. 12). As Plaintiff proceeds
pro se, this action was referred to United States
Magistrate Judge Dwane L. Tinsley for pretrial proceedings.
On March 16, 2017, Magistrate Judge Tinsley entered his
proposed findings and a recommendation for disposition
(“PF&R”) recommending that the Court deny
Plaintiff's Application to Proceed without Prepayment of
Fees and Costs and his Motion to Proceed in Forma Pauperis
and dismiss this civil action without prejudice. Plaintiff
filed three sets of timely objections on March 23 and March
27, 2017. (ECF Nos. 23, 24, 25.)
claims primarily concern the allegedly inadequate treatment
of Plaintiff's hernia between 2002 and 2016. For the
majority of these years, Plaintiff was incarcerated at Mount
Olive Correctional Complex (“MOCC”), a facility
within the jurisdiction of this Court. Several other
paragraphs of the Amended Complaint allege that Plaintiff is
under imminent danger of serious physical injury at HCC. (ECF
No. 12 at 4-5.) Magistrate Judge Tinsley finds that Plaintiff
has previously filed at least three actions in federal court
which were dismissed as being frivolous or malicious or for
failure to state a claim-in other words, Plaintiff has
“three strikes” under the Prison Litigation
Reform Act (“PLRA”). To the extent Plaintiff
attempts to avoid the PLRA's penalties by alleging that
he is under imminent danger of serious physical injury,
Magistrate Judge Tinsley finds that the PLRA exception
applies only when the imminent danger forms the basis of the
inmate's claims properly before the reviewing court.
Because Plaintiff's claims here relate to inadequate
medical treatment at MOCC, not danger looming at HCC,
Magistrate Judge Tinsley recommends dismissal.
STANDARD OF REVIEW
district judge must determine de novo any part of the
magistrate judge's disposition that has been properly
objected to.” Fed.R.Civ.P. 72(b)(3). The Court is not
required to review, under a de novo or any other
standard, the factual or legal conclusions of the magistrate
judge as to those portions of the findings or recommendation
to which no objections are addressed. Thomas v. Arn,
474 U.S. 140, 150 (1985). Failure to file timely objections
constitutes a waiver of de novo review. 28 U.S.C.
§ 636(b)(1); see also Snyder v. Ridenour, 889
F.2d 1363, 1366 (4th Cir. 1989); United States v.
Schronce, 727 F.2d 91, 94 (4th Cir. 1984). In addition,
this Court need not conduct a de novo review when a
party “makes general and conclusory objections that do
not direct the Court to a specific error in the
Magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982).
filed three sets of objections to the PF&R that can be
boiled down to two main objections, related to whether he has
demonstrated he is under imminent danger of serious physical
injury such that he falls under an exception to PLRA's
three strikes rule and whether this Court has jurisdiction
over his claims against Defendants HCC and Marvin C. Plumley.
(See ECF Nos. 23, 24, 25.) For the reasons explained
below, the Court overrules Plaintiff's objections. A.
Imminent Danger Plaintiff first objects to the
PF&R's finding that because the imminent danger he
alleges does not relate to the underlying claims over which
this Court has jurisdiction he cannot claim relief under the
PLRA's imminent danger exception. Plaintiff asserts this
imminent danger exception applies whenever a plaintiff is
presently under imminent danger of serious physical
injury. (See ECF No. 24 at 1.).
PLRA imposes a sanction eliminating the right to proceed
without payment of filing fees on prisoners who repeatedly
file meritless claims. Specifically, the PLRA states the
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.
U.S.C. § 1915(g). An exception to this three strikes
provision is if the prisoner alleges that he or she is
“under imminent danger of serious physical
injury.” See Id. Otherwise, the PF&R
correctly states that when the district court denies the
prisoner leave to proceed in forma pauperis pursuant
to the three strikes rule, the proper procedure is for the
court to dismiss the complaint without prejudice. See
Finley v. Doe, No. 5:07-cv-00807, 2008 WL 2645472 at * 2
(S.D. W.Va. June 30, 2008).
as stated above, Plaintiff is a “three striker.”
(See ECF No. 21 at 4 n.3.). Thus, he cannot file
another action without prepayment of fees unless he
demonstrates that he is under imminent danger of physical
injury. Several courts have found that the imminent danger
exception only applies when the plaintiff is facing imminent
danger relating to the claims of the underlying action.
See Chavis v. Chappius, 618 F.3d 162, 171 (2d Cir.
2010); Day v. Maynard, 200 F.3d 665, 667
(10th Cir. 1999); Spencer v. Doe, No. CIV-13-0692,
2014 WL 3778835, at *1 (W.D. Okla. July 31, 2014) (citing
Day, 200 F.3d at 665). Here, Plaintiff alleges that he
is under imminent danger from inmates at HCC and not from his
hernia treatment at MOCC, which is the basis of this action.
Therefore, the PF&R is correct in finding that Plaintiff
cannot demonstrate that he is under imminent danger for the
purposes of obtaining relief in this Court under the imminent
danger exception in 28 U.S.C. § 1915(g). Accordingly,
Plaintiff's objection is overruled.
Lack of Jurisdiction
second objects to the PF&R's finding that this Court
lacks jurisdiction over Plaintiff's claims against
Defendants HCC and Plumley. (See ECF No. 24 at
1-2.). Plaintiff relies on West Virginia Code § 14-2-2,
which states that civil actions against state officials must
be filed in the Circuit Court of Kanawha ...