Winding v. Vincent et al

Filing 43

ORDER ADOPTING 36 REPORT AND RECOMMENDATIONS; denying 34 Motion to Amend/Correct filed by James C. Winding, denying 17 Motion to Amend/Correct filed by James C. Winding, denying 18 Motion for Partial Summary Judgment filed by James C. Wind ing, finding as moot 21 Motion to Strike filed by O. Little, denying 38 Motion to Consolidate Cases filed by James C. Winding, denying 15 Motion to Compel filed by James C. Winding, denying 13 Motion for Miscellaneous Relief filed by Jam es C. Winding, denying 41 Motion for Leave to File filed by James C. Winding, denying 39 Motion for Extension of Time to File filed by James C. Winding, denying 9 Motion to Strike, filed by James C. Winding, denying 14 Motion for Miscellan eous Relief filed by James C. Winding, denying 16 Motion for Entry of Default filed by James C. Winding. A separate judgment dismissing action shall be entered. 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)

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

PLAINTIFF

VS.

CIVIL ACTION NO. 3:13CV425TSL-JMR

LEONARD VINCENT, ET AL.

DEFENDANTS
ORDER

This cause is before the court on the report and
recommendation of Magistrate Judge John M. Roper entered on
January 3, 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 filed an

objection to the report and recommendation, which he denominated
“motion to consolidate.”

Having reviewed the report and

recommendation and plaintiff’s objection, the court concludes that
the report and recommendation is well taken and should be adopted
subject to the following modification.
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 recommend dismissal pursuant to §
1915(e)(2)(B).1

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However, inasmuch as plaintiff has not been

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

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

This being said, it is clear that

the court has the 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

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,
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).
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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).

Because, for the reasons set

forth in the report and recommendation, Winding’s complaint fails
to state a claim upon which relief may be granted, the court
concurs with the magistrate judge’s conclusion that it is due to
be dismissed.
The court reaches this decision in spite of Winding’s
objection.

By his objection, Winding essentially seeks to amend

his complaint in an attempt to recast his claims as ones for
retaliation and/conspiracy.

More specifically, either in addition

to or instead of the allegations in the original complaint,
Winding now asserts that, the named defendants, save Leonard
Vincent, were instructed by defendant Leonard Vincent to allow him
to refile grievances which had been at the center of four pending
cases in this court.

According to Winding, “Each defendant(s)

conspire with each other so that I may not comply with Hon. Judge
Ball order to exhaust administrative remedies.”

Winding’s

characterization notwithstanding, these newly alleged facts do not
amount to a retaliation claim and the allegations are too
conclusory to support a civil conspiracy claim.

Accordingly, as

the proposed amendment is futile, plaintiff’s objection will be
overruled.
Based on the foregoing, it is ordered that the report
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and recommendation of United States Magistrate Judge John M. Roper
entered on January 3, 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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