Winding v. Evan et al

Filing 50

ORDER ADOPTING 43 REPORT AND RECOMMENDATIONS; denying 8 Motion for Miscellaneous Relief filed by James C. Winding, denying 46 Motion for Miscellaneous Relief, Motion to Amend/Correct filed by James C. Winding, denying 45 Motion for Miscell aneous Relief filed by James C. Winding, denying 21 Motion for Partial Summary Judgment filed by James C. Winding, denying 40 Motion to Amend/Correct filed by James C. Winding, finding as moot 24 Motion to Strike, denying 47 Motion to Ame nd/Correct, filed by James C. Winding, denying 49 Motion for Miscellaneous Relief filed by James C. Winding, denying 13 Motion for Miscellaneous Relief filed by James C. Winding, denying 20 Motion to Amend/Correct filed by James C. Winding, denying 16 Motion for Miscellaneous Relief filed by James C. Winding, denying 14 Motion to Compel filed by James C. Winding, denying 17 Motion for Miscellaneous Relief filed by James C. Winding, denying 15 Motion to Amend/Correct filed b y James C. Winding. A separate judgment shall be entered dismissing this action. Signed by District Judge Tom S. Lee on 3/18/14 (copy mailed to James C. Winding at #K8115, EMCF, 10641 Highway 80 West, Meridian, MS 39307) (LWE) Modified on 3/18/2014 (LWE).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
JAMES C. WINDING

PLAINTIFF

VS.

CIVIL ACTION NO. 3:13CV385TSL-JMR

TYESA EVAN, ET AL.

DEFENDANTS
ORDER

This cause is before the court on the report and
recommendation of Magistrate Judge John M. Roper entered on
January 8, 2014, recommending that the complaint in this case be
dismissed for failure to state a claim and that plaintiff’s
various motions be denied.

Plaintiff James C. Winding has filed

four motions in response to the report and recommendation, which
the court deems to be objections.

Having reviewed the report and

recommendation and plaintiff’s objection, the court concludes that
the report and recommendation is adopted subject to the following
clarification.
While the report and recommendation initially purports to
screen the complaint pursuant to 28 U.S.C. § 1915A, 28 U.S.C. §
1915(e)(2) and 42 U.S.C. § 1997e(c)(1), the magistrate judge
ultimately appears to have recommended dismissal for failure to
state a claim under § 1915(e)(2)(B)(allowing sua sponte dismissal
for delineated reasons).

However, inasmuch as plaintiff has not

been afforded in forma pauperis status by this court,1 as the case

1

The court’s review of the state court record did not
reveal an order granting plaintiff ifp status under state law.

was removed to this court by defendants, who paid the filing fee,
it is not clear to the court that screening pursuant to 28 U.S.C.
§ 1915(e)(2)(B) is appropriate.

See Jae v. Stickman, Civil Action

12-1332, 2012 WL 5830633 (W.D. Penn. Nov. 16, 2012)(declining to
screen removed prisoner complaint under § 1915(e)(2)(B), but
concluding that complaint could screened under other pertinent
statutes).2

This being said, it is clear that the court has the

2

The court notes that if 28 U.S.C. § 1915 (entitled
“Proceedings in forma pauperis”) has application in a removed case
where the removing defendants have paid the filing fee, it seems
that the proper course in this case, given that Winding has
incurred three strikes in this district, would not be to screen
his case under 28 U.S.C. § 1915(e), but rather to dismiss the
action pursuant to 28 U.S.C. § 1915(g), subject to Winding’s
either paying the filing fee or showing that he is “under imminent
danger of serious physical injury.” 28 U.S.C. § 1915(g) (“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 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 harm.”). Several courts have
determined that § 1915(g) has application in removed cases,
Riggins v. Corizon Medical Svcs, Civil Action No. 12–0578–WS–M,
2012 WL 5471248 (S.D. Ala. Oct. 19, 2012)(stating that “to [not]
apply the ‘three-strikes’ rule to Plaintiff's removed state court
action would allow Plaintiff to accomplish an end-run around the
‘three-strikes’ rule by filing in state court and hoping, perhaps,
for removal of his action to [federal] Court”); Crooker V. Global
Tel Link, No. 11–229L, 2012 WL 651644 (D. R.I. Jan.6,
2012)(concluding that § 1915(g) applied in removed cases and
requiring plaintiff to pay filing fee or demonstrate imminent
danger of serious physical harm); Farnsworth v. Washington State
Dept. of Corrections, No. C07-0206-RSM, 2007 WL 1101497 (W.D.
Wash. April 9, 2007) (concluding over plaintiff’s objection that
removed case could count as “strike” under § 1915(e)). The Fifth
Circuit, however, has left the question unanswered. Fleming v.
United States, 538 Fed. Appx. 423 (5th Cir. Aug. 7,
2

authority to screen a prisoner complaint for, among other reasons,
failure to state a claim as to the governmental defendants under
28 U.S.C. § 1915A (permitting screening of prisoner complaints
against governmental entity or officer), and as to all defendants
under 42 U.S.C. § 1997e (authorizing court to sua sponte screen
any action challenging prison conditions under § 1983).

Reviewing

the May 3, 2013 complaint for failure to state a claim under §§
1915A and 1997e, the court finds that the magistrate judge
correctly concluded that Winding’s complaint failed to state a
claim upon which relief could be granted and that the complaint is
due to be dismissed.
The court reaches this decision in spite of Winding’s
objections.

By his objections, Winding seeks to amend his

complaint to add both new claims and defendants.

While the

putative claims are predicated on wholly conclusory allegations,
the claims also relate to incidents which occurred after he
initially filed this complaint in state court on May 3, 2013.

As

Winding’s proposed amendments are simply an attempt to litigate a
new action or actions without the payment of the requisite filing
fee, his requests to amend will be denied and his objection will
be overruled.

2013)(concluding where district court correctly found that
complaint in removed case properly was dismissed under § 1915A,
appellate court need not consider whether dismissal under §
1915(g) was in error).
3

Based on the foregoing, it is ordered that the report
and recommendation of United States Magistrate John M. Roper
entered on January 8, 2014, be, and the same is hereby, adopted as
the finding of this court to the extent as modified above.
Accordingly, it is ordered that plaintiff’s complaint is dismissed
with prejudice and that Winding’s various pre-report and
recommendation motions are denied as recommended by the report and
recommendation.
Finally, it is ordered that Winding’s various post-report and
recommendation motions are denied.
A separate judgment will be entered in accordance with Rule
58 of the Federal Rules of Civil Procedure.
SO ORDERED this 18th day of March, 2014.

/s/ Tom S. Lee
UNITED STATES DISTRICT JUDGE

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