Marshall v. Correctional Medical Services et al

Filing 3

MEMORANDUM OPINION. Signed by Judge Roger W Titus on 5/5/11. (apl, Deputy Clerk)(c/m 5/6/11)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
GREGORY MARSHALL #183459,
Plaintiff,

:

v.

:

CIVIL ACTION NO. RWT-11-1106

CORRECTIONAL MEDICAL SERVICES, :
et al.,
:
Defendants.
MEMORANDUM OPINION
On April 25, 2011, Gregory Marshall, presently confined at the Western Correctional
Institution in Cumberland, filed a civil rights action seeking money damages against various
medical providers under contract with the Maryland Division of Correction. In addition to filing
a complaint, Marshall moved for leave to proceed in forma pauperis.
Marshall’s allegation that confusion as to which health care provider would provide his
special contact lenses led to constitutionally impermissible delays under the Eighth Amendment
was fully addressed in the December 14, 2010 Memorandum issued in Marshall v. Tessema, et
al., Civil Action No. JFM-08-3269 (D. Md.)1 In that action, the Honorable J. Frederick Motz
found much of the delay in obtaining the lenses attributable to Marshall.2
This case is subject to dismissal as it is fully and finally litigated. Futhermore, Marshall’s
claim for money damages is precluded under the Prison Litigation Reform Act (“PLRA”), 28
U.S.C. § 1915(e), which provides:
Notwithstanding any filing fee, or any portion thereof, that may
have been paid, the court shall dismiss the case at any time if the
1

2

The case was dismissed in its entirety on January 12, 2011, and Marshall’s appeal dismissed on April 21, 2011.

The undersigned notes that Marshall is attempting to “judge shop” by including members of this bench who have
ruled against him in prior cases in the caption of his complaint. The practice ends here.

court determines that -(A)
(B)

the allegation of poverty is untrue; or
the action or appeal -(I)
is frivolous or malicious;
(ii)
fails to state a claim on which relief may
be granted; or
(iii) seeks monetary relief against a defendant
who is immune from such relief.

In addition, 28 U.S.C. § 1915(g) mandates that:
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.
Marshall has three previous “strikes” under the PLRA.3 Marshall’s present claim does
not present extraordinary circumstances or imminent danger of serious physical injury. The case
shall be dismissed and indigency status denied. A separate Order follows.

Date: May 5, 2011

/s/
ROGER W. TITUS
UNITED STATES DISTRICT JUDGE

3

See Marshall v. Lanham, Civil Action No. AW-97-990 (D. Md. 1997); Marshall v. Correctional Center
of Howard County, Civil Action No. AW-97-2536 (D. Md. 1997); and Marshall v. Kemmerer, Civil Action No.
AW-02-2133 (D. Md. 2003).

2