United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE AND OVERRULING
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE
pro se plaintiff, Mustafa Ozsusamlar, filed this
civil action asserting claims under Bivens v. Six Unknown
Federal Narcotics Agents, 403 U.S. 388 (1971). ECF No.
1. Plaintiff is a federal inmate incarcerated at FCI Hazelton
in Bruceton Mills, West Virginia.
action was referred to United States Magistrate Judge James
P. Mazzone for submission of a proposed disposition pursuant
to 28 U.S.C. § 636(b)(1)(B). The magistrate judge filed
a report and recommendation recommending that the complaint
be dismissed without prejudice and the pending motions be
denied as moot. ECF No. 17. The magistrate judge informed the
plaintiff that if he objected to any portion of the report
and recommendation, he was required to file specific written
objections within 14 days after being served with copies of
the report and recommendation. Id. at 3. The
magistrate judge further informed the plaintiff that failure
to file written objections as set forth above shall
constitute a waiver of de novo review by the
district court and a waiver of appellate review by the
Circuit Court of Appeals. Snyder v. Ridenour, 889
F.2d 1363 (4th Cir. 1989); 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). ECF No. 17 at 3. The plaintiff then filed a
single, general objection. ECF No. 19.
reasons that follow, this Court finds that the report and
recommendation of the magistrate judge should be adopted in
28 U.S.C. § 636(b)(1)(C), this Court must conduct a
de novo review of any portion of the magistrate
judge's recommendation to which a specific written
objection is timely made. Because the plaintiff filed an
objection to the report and recommendation, the magistrate
judge's recommendation will be reviewed de novo
as to those findings to which the plaintiff objected. As to
those findings to which specific objections were not filed,
all findings and recommendations will be upheld unless they
are “clearly erroneous or contrary to law.” 28
U.S.C. § 636(b)(1)(A).
Prisoner Litigation Reform Act of 1995 (“PLRA”)
generally prohibits prisoners from filing a complaint under
in forma pauperis status if that prisoner filed at
least three in forma pauperis cases previously that
were dismissed as frivolous. Title 28, United States Code,
Section 1915(g) specifically provides as follows:
In no event shall a prisoner bring a civil action . . . 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.
magistrate judge found that this section of the PLRA was
applicable in this case, and thus recommended dismissal of
this civil action.
Court has conducted a review of the record in this case, as
well as the magistrate judge's report and recommendation.
This Court has confirmed that, while incarcerated, the
plaintiff has filed at least three civil actions or appeals
in federal courts which have been dismissed either as
frivolous or for failing to state a claim upon which relief
may be granted. The only exception to the three strike rule
stated above requires plaintiff to demonstrate that an
imminent danger of serious physical injury exists. 28 U.S.C.
§ 1915(g) (2012). This has been demonstrated in neither
his complaint nor his objections.
objection to the report and recommendation, plaintiff does
not object to the three strike rule application, but merely
states: “I wish to make payments plans to clear the
court cost or the $400.00 filing fee.” ECF No. 19 at 1.
This objection lacks sufficient basis to reverse this
Court's adoption of the magistrate judge's report and
recommendation. The prisoner cannot simply pay the filing fee
after being denied in forma pauperis status. The
prisoner 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.). 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 three strikes provision of
plaintiff's general objection, this Court finds that
plaintiff has failed to make specific objections to the
report and recommendation, and that this Court has conducted
an appropriate de novo review of the plaintiff's
objection to the report and recommendation as it relates to
the filing fee payment requirement. Thus, this Court ...