United States District Court, N.D. West Virginia
REPORT AND RECOMMENDATION
P. MAZZONE UNITED STATES MAGISTRATE JUDGE.
initiated this pro se civil action on December 26,
2018, by filing a complaint pursuant to 42 U.S.C. §
1983. The Plaintiff alleges that Defendant Smith violated the
Separation of Powers under the West Virginia Constitution and
usurped the power of the Parole Board to influence their
decision. The Plaintiff further alleges that Defendant Smith
provided the Parole Board with false information. With
respect to the Defendant Parole Board, the Plaintiff alleges
that it, through Susan Cross, denied him access to critical
documentation and information that was used to deny him
parole. For relief, Plaintiff seeks damages from Defendant
Smith, a jury trial, and an order to convene a parole hearing
interview with an attorney appointed to represent and protect
his interests. Simultaneously with his complaint, Plaintiff
filed a Motion for Leave to Proceed in forma
pauperis (“IFP”). On February 8, 2019,
Thomas E. Buck filed a Notice of Appearance on behalf of the
Defendants as well as a Response in Opposition to the
Plaintiff's Application to proceed IFP.
Prison Litigation Reform Act (PLRA) of 1995
(“PLRA”) provides that a sanction shall be
imposed on those prisoners who file meritless lawsuits
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 four of
Plaintiff's prior civil cases qualify as strikes under
this provision. See Williams v. Bonar, et al.,
5:01cv110 (N.D. W.Va..), ECF No. 8 (Order affirming Report
and Recommendation that Plaintiff's complaint be
dismissed pursuant to 28 U.S.C. § 1915A), Williams
v. Miles, et al., 2:08cv42 (S.D. W.Va.), ECF No.139
(order dismissing Plaintiff's complaint with prejudice
pursuant to 28 U.S.C. § 1915A); Williams v.
Toler, 2:08cv964 (S.D. W.Va..), ECF No. 10 (order
adopting Report and Recommendation that Plaintiff's
complaint be dismissed pursuant to 28 U.S.C. 1915A for
failure to state a claim upon which relief can be granted);
Williams v. Crawford, et al., 2:09cv585 (S.D.
W.Va.), ECF No. 22 (order adopting Report and Recommendation
that Plaintiff's complaint be dismissed with prejudice
pursuant to 28 U.S.C. § 1915A for being legally
frivolous and for failing to state a claim upon which relief
can be granted)
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
issues of parole and contains absolutely no allegations that
would suggest that he faces any danger let alone imminent
danger of serious physical injury. Accordingly, the Plaintiff
cannot establish any facts 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 initiate
a new case by filing a complaint with payment of the $400
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 and provide an electronic copy to counsel of record.
Upon entry of this Report and Recommendation, the clerk of