United States District Court, N.D. West Virginia
REPORT AND RECOMMENDATION
E. SEIBERT UNITED STATES MAGISTRATE JUDGE.
initiated this pro se civil action on November 8,
2017, by filing a complaint pursuant to Bivens v. Six
Unknown Named Agents of Federal Bureau of
Investigation. Liberally construed, Plaintiff alleges
that Defendants, all of whom are or were employed by the
Federal Bureau of Prisons at USP Hazelton, violated his
constitutional rights by applying chains arounds his waist so
tightly that he suffered pain and irreparable harm to his
belly, back, ankles and wrist. In addition, Plaintiff alleges
that he suffered retaliation, in the form placement in the
Special Housing Unit, for reporting the incident with the
chains. For relief, Plaintiff seeks $6, 000, 000 in
compensatory and punitive damages. In the alternative, he
seeks a jury trial. Simultaneously with his complaint,
Plaintiff filed a Motion for Leave to Proceed in forma
Prison Litigation Reform Act (PLRA) of 1995
(“PLRA”) provides that a sanction shall be
imposed on those prisoners who file meritless lawsuits
repeatedly. The sanction is that such prisoners lose the
right to proceed without prepayment of fees and costs.
In no event shall a prisoner bring a civil rights action or
appeal a judgment in a civil action or proceeding under this
section if the prisoner has, on 3 or more 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); see also, Ashley v. E.
Dilworth, CO-1, 147 F.3d 715 (8th Cir. 1998)
(“Section 1915(g) denied the installment payment method
to those prisoners who have had three previous cases or
appeals dismissed as frivolous, malicious, or for failure to
state a claim upon which relief can be granted (“three
strikes”).”). Consequently, “the proper
procedure is for the district court to dismiss the complaint
without prejudice when it denies a prisoner leave to proceed
in forma pauperis pursuant to the 3 strikes
provision of 1915(g). The prisoner cannot simply pay the
filing fee after being denied in forma pauperis
status. He must pay the filing fee at the time he
initiates the suit.” Dupree v. Palmer, 284
Fed.3d 1234, 1237 (11th Cir. 2002); see also Finley v.
Doe, No. 5:07-CV-00807, 2008 WL 264-5472 (S.D. W.Va.
June 30, 2008) (Johnson, J.).
undersigned's review of PACER, the nationwide database
maintained by the federal courts, indicates that more than
three of Plaintiff's prior civil cases qualify as strikes
under this provision. See Jones v. Kyler, et al.,
3:98-cv-012142-RPC-DB (M.D. PA.), ECF No. 10 (dismissed,
without prejudice, as frivolous, pursuant to 28 U.S.C. §
1915(e)(2)(B)(i)); Jones v. McFadden, et al.,
1:09-cv-01310-JLT (E.D. CA. 2010), ECF No. 16 (dismissed,
with prejudice, for failure to state a cognizable claim
pursuant to 28 U.S.C. § 1915(e)(2) and noting that the
dismissal shall count as a strike pursuant to 28 U.S.C.
§ 1915(g)); Jones v. McFadden, et al.,
1:09-cv-00957-DLB (E.D. CA.), ECF No. 14 (dismissed with
prejudice for failure to state a claim upon which relief may
be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and
noting that the dismissal shall count as a strike pursuant to
28 U.S.C. §915(g)); and Jones, et al., v. Bowser, et
al., 1:16-cv-02142-UNA (District of Columbia 2016), ECF
No. 16 (dismissing case because it fails to state a claim
upon which relief can be granted pursuant to 28 U.S.C. §
the PLRA includes an exception to the section 1915 (g) filing
restriction if the prisoner is under imminent danger of
serious physical injury, that exception cannot apply in this
case. As previously noted, Plaintiff's complaint concerns
events that occurred at USP Hazelton. However, by the time
Plaintiff filed his complaint, he had been moved to USP
Coleman which is located in Coleman, Florida. Therefore, even
if this court were inclined to believe that Defendants posed
an imminent danger of serious physical injury to Plaintiff,
he is no longer exposed to those Defendants. Given these
circumstances, the complaint fails to state any facts
indicating that Plaintiff is under imminent danger of serious
physical injury sufficient to warrant an exception to the
PLRA three strikes rule with respect to the claims that are
actionable in this Court.
foregoing reasons, the undersigned recommends Plaintiff's
case be DISMISSED WITHOUT PREJUDICE pursuant
to 28 U.S.C. § 1915 (g), and his pending Motion for
Leave to Proceed in forma pauperis [ECF No. 2] be
DENIED. The undersigned further recommends
that Plaintiff be advised that if he wishes to pursue the
allegations raised in the instant complaint, he must refile
the complaint with payment of the $400 filing fee.
14 days after being served with a copy of this Report and
Recommendation, Plaintiff may file with the Clerk of Court
written objections identifying those portions of the
recommendation to which objection is made and the basis for
such objections. A copy of any objections shall also be
submitted to the Honorable John Preston Bailey, United States
District Judge. Failure to timely file objections to this
recommendation will result in waiver of the right to appeal
from a judgment of this 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).
Clerk is DIRECTED to mail a copy of this report and
recommendation to Plaintiff by certified mail, return receipt
requested to his last known address as shown on the docket
sheet. Upon entry of this Report and Recommendation, the
clerk of court is further DIRECTED to
terminate the Magistrate Judge association with this case.
403 U.S. 288 (1971).