Van Dyke v. Pilland et al

Filing 4

ORDER denying Application to proceed IFP; DISMISSING CASE without prejudice; plaintiff to respond withing 14 days of this order re: prefiling review system. Signed by Chief Judge Robert J. Conrad, Jr on 7/3/12. (Pro se litigant served by US Mail.)(bsw)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:12-cv-128-RJC
DENNIS ROGER VANDYKE,
Plaintiff,
v.
CHRIS FRANCIS, et al.,
Defendants.

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ORDER

THIS MATTER is before the Court on a review of Plaintiff’s Application to Proceed
Without Prepayment of Fees or Costs, (Doc. No. 1-1), and a review of Plaintiff’s Complaint,
filed under 42 U.S.C. § 1983, (Doc. No. 1). 28 U.S.C. §§ 1915; 1915A.
Plaintiff is currently a prisoner incarcerated in the Rutherford County Jail. The Court
notes that Plaintiff is a frequent, if not record, filer of pro se lawsuits in this district. A review of
Plaintiff’s history within this district reveals he has filed no less than twenty-three (23) lawsuits
in this court, at least fifteen (15) of which were complaints filed under 42 U.S.C. § 1983, with
fifteen (15) accompanying applications to proceed in forma pauperis. On August 1, 2006, the
Honorable Graham C. Mullen provided an overview of Plaintiff’s allegations in eight (8) of
these complaints and made the following findings and warning in an order granting defendants’
motion for summary judgment:
On June 21, 2006 alone, Plaintiff filed five separate Complaints requiring this
Court’s time and resources. All five of those Complaints were dismissed on
initial review for failure to state a claim for relief, frivolousness, or failure to file
in the proper district. Plaintiff’s frequent filings are abusive in that they each
require significant time and attention from the Court’s legal staff that could be
better served on cases that state legitimate constitutional violations. Plaintiff is
put on notice that because he has had at least three cases dismissed, in this district
alone, as frivolous or for failure to state a claim upon which relief may be

granted, he may not file future civil actions or appeal a judgment in a civil
proceeding under 28 U.S.C. § 1915 in any federal district unless he is under
imminent danger of serious physical injury. 28 U.S.C. § 1915(g).
(Case No. 1:05-cv-357, Doc. No. 31 at 4) (emphasis in original). Plaintiff appealed, and the
United States Court of Appeals for the Fourth Circuit affirmed summary judgment for the
defendants for the reasons stated in Judge Mullen’s Order. VanDyke v. Officer O’Donnell, et
al., No. 06-7454 (4th Cir. Mar. 27, 2007); (Case No. 1:05-cv-357, Doc. No. 39).
The provisions of 28 U.S.C. § 1915 are mandatory and define the degree and scope of
this Court’s initial review of Plaintiff’s Complaint. See Crawford-El v. Britton, 523 U.S. 574,
596 (1998) (discussing the Prisoner Litigation Reform Act (“PLRA”)). Section 1915(g)
provides 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.
At least three of Plaintiff’s previous complaints were dismissed on the grounds that they were
frivolous or failed to state a claim upon which relief may be granted. See, e.g., (Case Nos. 1:05cv-357-GCM; 1:06-cv-172-GCM; 1:06-cv-200-GCM; 1:12-cv-113-RJC).
This Court has examined Plaintiff’s Complaint, (Doc. No. 1), and finds that Plaintiff’s
Complaint fails to demonstrate that he “is under imminent danger of serious physical injury” as
required by § 1915(g) of the PLRA. Plaintiff alleges that he is being denied “mental court
ordered mental medications” but does state that this alleged deprivation has, or will likely lead
to, imminent serious physical injury. Plaintiff is subject to § 1915(g)’s bar to filing civil actions
under the PLRA without prepayment of the filing fee and is not under imminent danger of
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serious physical injury. While the Clerk of Court correctly found that Plaintiff could not afford
to prepay the fees and costs in this action, see (Doc. No. 3), pursuant to 28 U.S.C. § 1915(g),
Plaintiff’s Application to Proceed in forma pauperis must be DENIED. This Court will
DISMISS Plaintiff’s Complaint without prejudice to his ability to re-file with prepayment of the
filing fee.
Regarding Plaintiff’s abusive filings, the Court finds that it must take some limited action
to protect itself from Plaintiff’s disregard for its time and other dwindling resources. The Court
does not lightly consider the imposition of a pre-filing review system upon Plaintiff: “a judge
should not in any way limit a litigant’s access to the courts absent exigent circumstances, such as
a litigant’s continuous abuse of the judicial process by filing meritless and repetitive actions.”
Cromer v. Kraft Foods N. Am., Inc., 390 F.3d 812, 818 (4th Cir. 2004). The use of such a
measure against a pro se litigant should be approached with particular care. Id. at 818. In
Cromer, the Court identified a test for determining whether to impose limitations on a litigant’s
access to the Courts. Id. The Court must:
weigh all the relevant circumstances, including (1) the party’s history of
litigation, in particular whether he has filed vexatious, harassing, or duplicative
lawsuits; (2) whether the party had a good faith basis for pursuing the litigation,
or simply intended to harass; (3) the extent of the burden on the courts and other
parties resulting from the party’s filings; and (4) the adequacy of alternative
sanctions.
Id. “‘Ultimately, the question the court must answer is whether a litigant who has a history of
vexatious litigation is likely to continue to abuse the judicial process and harass other parties.’”
Black v. New Jersey, No. 7:10-CV-57-F, 2011 WL 102727, at *1 (E.D.N.C. Jan. 11, 2011)
(unpublished) (quoting Safir v. U.S. Lines, Inc., 792 F.2d 19, 24 (2d Cir. 1986)).
As to the foregoing factors, the Court has already outlined Plaintiff’s history of filings in
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this judicial District, which reflects a lack of respect for the judicial process. Plaintiff lacked a
good faith basis for filing most, if not all, of his complaints. Despite being told by Judge Mullen
on August 1, 2006, (Case No. 1:05-cv-357, Doc. No. 31), and by the Fourth Circuit on July 11,
2007, (Case No. 1:06-cv-00192, Doc. Nos. 13; 14), that he was subject to § 1915(g)’s bar to
filing civil actions under the PLRA without prepayment of the filing fee, Plaintiff continues to
file meritless lawsuits accompanied by applications to proceed without prepaying the filing fee.
The Court finds that Plaintiff’s filings constitute harassment. They have caused the
Court to expend considerable resources. Based upon these circumstances, the Court concludes
that Plaintiff will continue his abusive behavior if he is not subjected to a pre-filing review
system.
Before considering a pre-filing limitation, Plaintiff is offered an opportunity to explain
why the Court should not impose such a pre-filing review system upon all future filings from
him. See Black, 2011 WL 102727, at * 1 (Before imposing a pre-filing injunction, “the litigant
must be given notice and an opportunity to be heard on the matter.”). In the event Plaintiff fails
to articulate a reason why that system should not be imposed, the Court will enter an Order
directing that all documents submitted by Plaintiff in the future be pre-screened for content. The
Court will review all of Plaintiff’s intended filings. Any such document that is not made in good
faith or which does not contain substance or merit, will be returned to Plaintiff without further
explanation. Such a system will allow Plaintiff to have access to the Courts for his legitimate
concerns, but will prevent him from usurping the Court’s resources with his baseless
submissions.

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IT IS, THEREFORE, ORDERED that:
1.

Plaintiff’s Application to Proceed in forma pauperis, (Doc. No. 1-1), is DENIED;

2.

Plaintiff’s Complaint, (Doc. No. 1), is DISMISSED without prejudice; and

3.

Within fourteen (14) days of the entry of this Order, Plaintiff shall file a single
document, not to exceed more than three single-spaced pages, succinctly
explaining why he believes the Court should not impose the above-described prefiling review system. Plaintiff is expressly warned that his failure to fully
comply with this directive will result in the Court’s imposition of the subject
pre-filing review system.

Signed: July 3, 2012

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