United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
R. GOODWIN UNITED STATES DISTRICT JUDGE.
before the court is the plaintiff, Timothy Young's
(hereinafter “Young”), Amended Complaint [ECF
Nos. 1 and 7] and his Motion for Preliminary Injunction [ECF
No. 30]. Young also filed numerous exhibits and appendices in
support of his Amended Complaint [ECF Nos. 18, 22, 28 and
29]. Young has not paid the applicable $400 filing fee or
filed an Application to Proceed Without Prepayment of Fees
and Costs (also known as an Application to Proceed in
forma pauperis). This matter is referred to United
States Magistrate Judge Dwane L. Tinsley for submission of
proposed findings and a recommendation for disposition
pursuant to 28 U.S.C. § 636. For reasons appearing to
the court, the referral of this matter to the Magistrate
Judge is WITHDRAWN.
Standard of Review.
Complaint is subject to the filing fee provisions of the
Prison Litigation Reform Act (“PLRA”), 28 U.S.C.
§§ 1915(b) and (g). See, e.g., In re
Kissi, 652 F.3d 39, 41 (D.D.C. 2011). The PLRA provides
that prisoners who repeatedly file meritless lawsuits lose
the right to proceed without prepayment of fees and costs.
In no event shall a prisoner bring a civil action under this
section [relating to proceedings in forma pauperis]
if the prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action .
. . 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) denies 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 the prisoner leave to
proceed in forma pauperis pursuant to the three
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
F.3d 1234, 1237 (11th Cir. 2002); see also
Finley v. Doe, No. 5:07-cv-00807, 2008 WL 2645472
(S.D. W.Va. June 30, 2008) (Johnston, J.).
Procedural History and Allegations in Amended
is a federal prisoner incarcerated at the Administrative
Maximum Facility located in Florence, Colorado (“ADX
Florence”). In 2015, while incarcerated at ADX
Florence, Young filed a previous civil action in this United
States District Court, against the Bureau of Prisons
(“BOP”) and Matthew Mellady, its Mid-Atlantic
Regional Counsel, asserting that he was wrongfully refused
certain medical records and information pursuant to the
Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552(a)(4)(B). See Young v. Mellady, No.
5:15-cv-14151 (S.D. W.Va.) (Berger, J.). Stephen M. Horn,
then an Assistant United States Attorney for the Southern
District of West Virginia, represented the defendants in that
matter, which was ultimately dismissed pursuant to 28 U.S.C.
§ 1915(g), because, while incarcerated, Young has filed
at least three prior civil actions in federal courts which
have been dismissed as being frivolous or malicious, or for
failure to state a claim upon which relief can be granted. In
fact, Young has filed numerous civil actions in various
federal courts around the United States that have been
dismissed on these bases.
Honorable Irene C. Berger, the presiding District Judge in
Young v. Mellady, found:
The Plaintiff has an apparent strategy of filing suits in
district courts across the country in an effort to evade
§ 1915(g). Numerous courts have issued opinions
informing Mr. Young that he is not permitted to proceed
in forma pauperis. See, e.g., In re Young,
382 Fed.Appx. 148, 149 (3d Cir. 2010) (applying 1915(g) and
noting that “Young has worn out his welcome elsewhere);
Young v. United States, 88 Fed.Cl. 283, 291 (2009)
(counting over sixty suits initiated by the Plaintiff and
stating that “Mr. Young has made himself an example of
the type of plaintiff Congress was trying to address when it
enacted the Prison Litigation Reform Act.”); Young
v. United States, No. 14-CV-11930, 2014 WL 2533834, at
*2 (E.D. Mich. June 5, 2014) (noting that the Plaintiff
“was advised by federal district judges on at least
three separate occasions that he was precluded from
proceeding in forma pauperis . . . because of these
prior dismissals.”); Young v. United States,
No. 2:13-CV-00833, 2013 WL 6710775, at *2 (S.D. Ohio Dec. 18,
2013), report and recommendation adopted, No.
2:13-CV-00833, 2014 WL 2515586 (S.D. Ohio June 4, 2014);
Young v. United States, No. 3:14-CV-0420-B, 2014 WL
1660689, at *1 (N.D. Tex. Apr. 18, 2014).
Op. and Order, Young v. Mellady, No. 5:15-cv-14151,
ECF No. 62 (S.D. W.Va. Sept. 2, 2016) (Berger, J.)
Berger's Memorandum Opinion and Order further
acknowledged that the following matters filed by Young, while
incarcerated, have been dismissed as being frivolous and/or
malicious: Young v. Bureau of Prisons, No.
1:08-cv-00182 (D. Colo.); Young v. United States,
1:08-cv-00226 (D. Colo.); and Young v. No. Defendants
Named, No. 1:08-cv-00413 (D. Colo.). Judge Berger
further found that the Complaint in Young v. Mellady
was also frivolous and failed to demonstrate that Young was
under imminent danger in order to overcome the section
instant matter, Young continues to pursue his frivolous claim
that he has been wrongfully denied medical records pertaining
to blood tests results for Hepatitis C by the BOP and the
Department of Justice (“DOJ”) attorneys who
represent them, and further asserts that he is being
wrongfully denied medical treatment at ADX Florence. Young
attempts to overcome the section 1915(g) bar to proceeding
without paying the $400 filing fee, in full, by contending
that “his life is in danger.” In his
excessively-lengthy Amended Complaint, he further contends
that section 1915(g) and the PLRA exhaustion requirement in
42 U.S.C. § 1997e(a) are unconstitutional, and he
further complains about his medical treatment and various
other conditions of confinement at ADX Florence over which
this Court has no jurisdiction.