Aurel v. Nines et al

Filing 3

MEMORANDUM. Signed by Judge Ellen L. Hollander on 6/6/2016. (c/m 6/6/16)(krs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

MICH AUREL, #317239
Plaintiff
v.

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*

WARDEN

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CIVIL ACTION NO.: ELH-16-1494

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MICH AUREL, #317239
Plaintiff
v.
WARDEN JEFF NINES, et al.

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CIVIL ACTION NO.: ELH-16-1839

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MEMORANDUM

On May 18, 2016, the court received a prisoner civil rights action (ECF 1) filed by Mich
Aurel,1 an inmate confined at the North Branch Correctional Institution (“NBCI”). The complaint,
filed on toilet paper, claims that Aurel had been designated for housing on disciplinary segregation
and his two boxes of legal materials had been confiscated. He seeks $10,000,000 in damages. The
matter was instituted as a suit under 42 U.S.C. § 1983. See Aurel v. Warden, Civil Action No. ELH16-1494 (D. Md.) (“Aurel I”).
On June 2, 2016, Aurel filed another complaint (ECF 1), using a 42 U.S.C. § 1983 form, and
a motion for leave to proceed in forma pauperis (ECF 2). See Aurel v. Nines, et al., Civil Action
No. ELH-16-1839 (D. Md.). (“Aurel II”). He again alleges that his legal papers and law books
have been confiscated, in violation of his rights under the First Amendment. In addition, Aurel
complains that photographs of his family and jewelry were confiscated, lost, or taken. He seeks the
1

The Maryland Department of Public Safety and Correctional Services (“DPSCS”) lists
plaintiff as Mich Aurel on its “inmate locator” website. Although plaintiff was prosecuted as
Aurel Mich in the Maryland courts, I will refer to him per the DPSCS designation of Mich Aurel.

return of the materials and $10,000 in damages for each day his materials remain seized. Aurel II,
ECF 1.
As to the jewelry, Aurel asserts that it is valued at $7,500. He claims it was mailed to his
daughter through the NBCI mailroom in February or March of 22016, but was never received. See
Aurel II, ECF 1 at 3.2
Inasmuch as the two complaints raise similar claims, they shall be consolidated for all
purposes.
Aurel is litigious. These cases represent the twenty-sixth and twenty-seventh actions that
Aurel has filed in this court over the past five years.3 In three of those cases Aurel was granted
2

In such cases, sufficient due process is afforded an inmate if he has access to an
adequate post-deprivation remedy. See Parratt v. Taylor, 451 U.S. 527, 542–44 (1981),
overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986). The right to seek
damages and injunctive relief in Maryland courts constitutes an adequate post deprivation
remedy. See Juncker v. Tinney, 549 F.Supp. 574, 579 (D. Md. 1982). The Supreme Court
extended its Parratt holding to intentional deprivations of property. See Hudson v. Palmer, 468
U.S. 517, 533 (1984). Therefore, assuming Aurel’s personal property was lost or intentionally
taken, as Aurel implies, such a claim does not rise to a constitutional violation.
3

See Aurel v. United States., Civil Action No. JKB-11-1297 (D. Md.); Aurel v. Wexford,
Civil Action No. ELH-13-3721 (D. Md.); Aurel v. Jefferson, et al., Civil Action No. ELH-14-352
(D. Md.); Aurel v. Shearin, et al., Civil Action No. ELH-14-374 (D. Md.); Aurel v. Jessup
Correctional Institution Mail Room, Civil Action No. ELH-14-958 (D. Md.); Mich v. Nice, et al.,
Civil Action No. JKB-14-1397 (D. Md.); Aurel v. North Branch Correctional Institution, et al.,
ELH-14-3036 (D. Md.); Mich v. Yacenech, et al., Civil Action No. JKB-14-1473 (D. Md.); Aurel
v. Wexford Health Sources, Inc., et al., Civil Action No. ELH-15-1797 (D. Md.); Aurel v.
Pennington, et al., Civil Action No. JKB-14-1859 (D. Md.); Aurel v. Mail Room at North Branch
Correctional Institution, et al., ELH-14-2813 (D. Md.); Aurel v. Warden, ELH-15-258 (D. Md.);
Aurel v. Warden, ELH-15-1127 (D. Md.); Aurel v. Warden., ELH-15-1128 (D. Md.); Aurel v.
Miller, et al., ELH-15-1422 (D. Md.); Aurel v. Kammauf, et al., ELH-15-1581 (D. Md.); Aurel v.
Gainer, et al., ELH-15-1750 (D. Md.); Aurel v. Twigg, ELH-15-1920 (D. Md.); Aurel v. Jones,
et al., ELH-15-1928 (D. Md.); Aurel v. Rose., ELH-15-2604 (D. Md.); Aurel v. Thrasher, ELH15-3142 (D. Md.); Aurel v. Sawyers, et al., Civil Action No. ELH-16-280 (D. Md.); Aurel v.
North Branch Correctional Institution, et al., Civil Action No. ELH-16-850 (D. Md.); Aurel v.
North Branch Correctional Institution, et al., Civil Action No. ELH-16-851 (D. Md.); and Aurel
v. Wexford Health Sources, et al., Civil Action No. ELH-16-1293 (D. Md.).
2

leave to proceed in forma pauperis pursuant to the provisions of 28 U.S.C. § 1915(a). Those cases
were dismissed as frivolous or for the failure to state a claim. He was notified that the dismissals
constituted “strikes” under § 1915(e),4 and that a prisoner is not allowed to bring a civil action under
the provisions of 28 U.S.C. § 1915 if he "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).5
As noted, three of Aurel’s prior cases in this Court were dismissed under 28 U.S.C. §
1915(g). Therefore, he may not procced in this action unless he (1) submits the $400 civil filing fee
or (2) moves to proceed in forma pauperis and provides particularized factual allegations
establishing that he is subject to imminent danger of serious physical injury.
Aurel does not allege he faces imminent danger of serious physical injury at the time he
filed his complaints, and there is no plausible basis for concluding such a danger existed. See
Sayre v. King, 2014 WL 4414509, * 3 (N.D. W.Va. 2014) (prisoner’s claim that he was denied
access to all of his legal materials does not rise to the level of imminent danger of serious

4

See Mich v. Nice, et al., Civil Action No. JKB-14-1397 (D. Md.); Aurel v. Gainer, et
al., ELH-15-1750 (D. Md.); and Aurel v. Jones, et al., ELH-15-1928 (D. Md.).
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Specifically, §1915(g) provides:

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.
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physical injury satisfying § 1915(g) exception). Aurel is forewarned that should he attempt to
file future civil rights actions in this court, they must be accompanied by the civil filing fee. In
the alternative, a complaint filed with an indigency application must assert and demonstrate that
Aurel is in imminent danger of serious physical harm.
Accordingly, Aurel’s motion to proceed in forma pauperis shall be denied and his
consolidated complaint shall be dismissed, without prejudice, by separate Order.

Date: June 6, 2016

________/s/_______________
Ellen L. Hollander
United States District Judge

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