Lanier v. Burns et al

Filing 54

ORDER that Defendants' 43 Motion to Revoke Plaintiff's in Forma Pauperis Status and Plaintiff's 42 "Request to Participate in the Pro-Se Settlement Assistance Program" are DENIED. IT IS FURTHER ORD ERED that Plaintiff's 53 filing is STRICKEN from the record in this matter and Plaintiff is expressly admonished that the Court may dismiss this action without prejudice and without further notice to the Plaintiff should Plaintiff make any further improper filings in this matter. Signed by Chief Judge Martin Reidinger on 1/16/2023. (Pro se litigant served by US Mail). (kby)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:22-cv-00078-MR
RICARDO EDWIN LANIER,

)
)
Plaintiff,
)
)
vs.
)
)
)
J. BURNS, et al.,
)
)
Defendants.
)
________________________________ )

ORDER

THIS MATTER is before the Court on Plaintiff’s “Request to Participate
in the Pro-Se Settlement Assistance Program,” [Doc. 42], Defendants’
Motion to Revoke Plaintiff’s in Forma Pauperis Status, [Doc. 43], and
Plaintiff’s recent filing, [Doc. 53].
I.

BACKGROUND
Pro se Plaintiff Ricardo Edwin Lanier (“Plaintiff”) is a prisoner of the

State of North Carolina currently incarcerated at Columbus Correctional
Institution in Whiteville, North Carolina. On April 8, 2022, he filed this civil
rights action pursuant to 42 U.S.C. § 1983 against Defendants J. Burns and
Z. Capps. [Doc. 1]. Plaintiff claimed, in part, that Defendants unlawfully
entered his home to quell a non-existent domestic disturbance and tased him
without provocation. [See id.]. Plaintiff, however, failed to pay the filing fee

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or move to proceed in forma pauperis (IFP). The Clerk, therefore, notified
Plaintiff that this action would be dismissed without prejudice if Plaintiff failed
to timely address this deficiency. [Doc. 2]. Plaintiff timely moved to proceed
in forma pauperis. [Doc. 4]. The Clerk granted Plaintiff’s motion and ordered
that the initial filing fee was waived and directed monthly installment
payments from Plaintiff’s prison trust account.

[Doc. 10].

The Court

conducted its initial review of Plaintiff’s Complaint, finding that only Plaintiff’s
Fourth Amendment excessive force claim survived. [Doc. 12]. On October
24, 2022, Defendants answered Plaintiff’s Complaint, [Doc. 35], and the
Court entered its Pretrial Order and Case Management Plan in this matter,
[Doc. 36].
On December 8, 2022, Defendants filed the pending motion, seeking
revocation of Plaintiff’s IFP status. [Doc. 43]. As grounds, Defendants argue
that Plaintiff has had more than three prisoner civil actions dismissed for
failure to state a claim for relief and that this action must be dismissed under
28 U.S.C. § 1915(g) without prejudice until Plaintiff pays the filing fee in full.
[Doc. 44 at 2-6]. Plaintiff responded to Defendants’ motion. [Doc. 50].
Plaintiff opposes the motion “solely because the Plaintiff has in fact been
granted leave by the court to proceed in forma pauperis with this action.” [Id.
at 2]. Plaintiff also claims that he “is in fact under imminent danger of serious
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physical injury [because when he is released next month, Defendants] could
once again illegally come into Plaintiff’s home and either subject him to
excessive force again, or perhaps allege Plaintiff provoked them to shoot him
and kill Plaintiff.” [Id. at 3, 4].
II.

DISCUSSION
Section 1915(g) of the Prison Litigation Reform Act (“PLRA”) 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.

28 U.S.C. § 1915(g). Any of the enumerated types of dismissals count as a
strike, “whether [the dismissals are] with prejudice or without.” Lomax v.
Ortiz-Marquez, 140 S.Ct. 1721, 1723 (2020). However, the Supreme Court
has stated that, when a court gives a plaintiff leave to amend his complaint,
“the suit continues, the court’s action falls outside of Section 1915(g) and no
strike accrues.” Id. at 1725, n.4.
Defendants argue that Plaintiff has filed at least three (3) prior nonhabeas civil actions that have been dismissed for his failure to state a claim
for relief. See Lanier v. Hernandez, 3:09-cv-00240-DMS-POR (S.D. Cal.),
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Docs. 1, 17; Lanier v. Griffin, 1:14-cv-252-FDW (W.D.N.C.), Docs. 1, 10;
Lanier v. Hands, 5:17-ct-3042-FL (E.D.N.C.), Docs. 1, 13. However, in Case
No. 5:17-cv-3042, the Plaintiff was granted leave to amend. [5:17-cv-3042,
Doc. 13]. Therefore, the dismissal in that case is not a “strike” pursuant to §
1915(g). See Lomax, 140 S.Ct. at 1725 n.4. Accordingly, Defendants have
failed to identify three prior “strikes” against the Plaintiff before he filed the
instant action. The Court, therefore, will deny Defendants’ motion.
The Court, however, will deny Plaintiff’s request to participate in the
Pro Se Settlement Assistance Program. This program is not available to
prisoners like Plaintiff. See LCvR 16.4(b)(1) (specifically excluding “[c]ases
in which the pro se party is a prisoner or pretrial detainee” from the Program’s
application).
Finally, Plaintiff recently filed a document he calls “Admitted Facts of
Defendant Burns with Regaurds [sic] to Allegations Made by Plaintiff in
Complaint.” [Doc. 53]. The Court will strike this document. It is a wholly
improper submission to the Court in direct contravention of the Court’s Order
of Instructions and the Local Rules of this Court. [See Doc. 3 at ¶ 7 (“It is
Plaintiff’s responsibility to … refrain from making frivolous or duplicative
filings….”); LCvR 26.2 (“The parties shall not file any … discovery requests
or responses thereto … or other discovery material….”).]. In this filing,
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Plaintiff purports to move to “bring to the Court’s attention certain ‘vital
aspects’” of Plaintiff’s Complaint “admitted by the defendant’s [sic].” [Doc.
53 at 2]. Plaintiff goes on to purportedly rehash Defendants’ discovery
responses and attaches a copy thereof. [See Doc. 53, 53-1]. Should this
case proceed to summary judgment, Plaintiff can present discovery
materials at the appropriate time.

Until then, any such submissions or

purported submissions will be stricken.
Plaintiff has been repeatedly admonished in this case against making
improper filings with the Court. [See Doc. 18 at 7; Doc. 16 at 5, Doc. 38 at 2;
Doc. 40 at 3]. He, unfortunately, remains undeterred. Although the Court is
denying Defendants’ current motion to revoke Plaintiff’s IFP status under §
1915(g), the Plaintiff is reminded that he will be subject to sanctions,
including dismissal of this action, should he persist in inundating the Court
with improper and unnecessary filings.
III.

CONCLUSION
In sum, the Court will deny Defendants’ motion to revoke Plaintiff’s IFP

status, deny Plaintiff’s motion to participate in the Pro-Se Settlement
Assistance Program, and strike Plaintiff’s recent filing.

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ORDER
IT IS, THEREFORE, ORDERED that Defendants’ Motion to Revoke
Plaintiff’s in Forma Pauperis Status [Doc. 43] and Plaintiff’s “Request to
Participate in the Pro-Se Settlement Assistance Program” [Doc. 42] are
DENIED.
IT IS FURTHER ORDERED that Plaintiff’s filing [Doc. 53] is
STRICKEN from the record in this matter and Plaintiff is expressly
admonished that the Court may dismiss this action without prejudice and
without further notice to the Plaintiff should Plaintiff make any further
improper filings in this matter.
IT IS SO ORDERED.
Signed: January 16, 2023

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