Gause v. Driggers et al

Filing 9

ORDER: (1) The #8 Order waiving the initial partial filing fee and directing monthly payments from Plaintiff's inmate account is VACATED, and Plaintiff's #2 Application to Proceed in District Court Without Prepaying Fees and Costs is DENIED; (2) Plaintiff's Complaint is DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. 1915(g); (3) The Clerk is instructed to update the docket in this matter to designate Docket No. 3 as a Motion to Amend Complaint; (4) Plaintiff's motions to amend complaint [Docs. 3, 4] are DENIED as moot. The Clerk of Court's Financial Department is instructed to reimburse Plaintiff for funds that have been collected for the payment of his filing fee, if any, and to mail a copy of this Order to the Scotland Correctional Institution so that withdrawals from Plaintiff's inmate account for this case can be terminated. Signed by Chief Judge Martin Reidinger on 11/18/2021. (Pro se litigant served by US Mail.) (khm)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:21-cv-00553-MR
WALTER TIMOTHY GAUSE,

)
)
Plaintiff,
)
)
vs.
)
)
)
CURTIS DRIGGERS, et al.,
)
)
Defendants.
)
________________________________ )

ORDER

THIS MATTER is before the Court on initial review of Plaintiff’s
Complaint, filed under 42 U.S.C. § 1983 [Doc. 1], Plaintiff’s motion to proceed
in forma pauperis [Doc. 2], and Plaintiff’s motions to amend his Complaint
[Docs. 3, 4].
I.

BACKGROUND
Pro se Plaintiff Walter Timothy Gause (“Plaintiff”) is a prisoner of the

State of North Carolina currently incarcerated at Scotland Correctional
Institution in Laurinburg, North Carolina. He filed this civil rights action
pursuant to 42 U.S.C. §§ 1983 and 1985 on October 15, 2021, alleging
violations of Plaintiff’s rights leading to his conviction and current
incarceration. [Doc. 1]. Plaintiff names Curtis Driggers, Denzil H. Forrester,
Kimberly P. Hoppin, Amy Moekye, Christian Hoel, the Clerk of the Superior

Case 3:21-cv-00553-MR Document 9 Filed 11/18/21 Page 1 of 4

Court of Mecklenburg County, the City of Charlotte, and Norman Butler as
Defendants. [Id.]. The Clerk granted Plaintiff’s motion to proceed in forma
pauperis. [Docs. 2, 8]. Plaintiff has filed two motions to amend his Complaint
in this matter in which he seeks to add additional Defendants.1 [Docs. 3, 4].
II.

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

The Clerk docketed one of these motions to amend [Doc. 3] as an Amended Complaint.
The Court will instruct the Clerk to update the docket in this matter to designate this filing
as a motion to amend.
1

2

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Plaintiff has filed at least three prior civil actions that count as strikes
under § 1915(g): Gause v. Murray, 3:18-cv-00378-FDW, 2018 WL 3419277
(W.D.N.C. July 13, 2018) (§ 1983 action dismissed pursuant to Heck v.
Humphrey, 512 U.S. 477 (1994)); Gause v. Murray, 3:19-cv-00341-FDW,
2019 WL 4267491 (W.D.N.C. Sept. 9, 2019) (same); Gause v. Hooks, 3:20cv-00507-MR, 2020 WL 6275007 (W.D.N.C. Oct. 26, 2020) (§ 1983 action
dismissed with prejudice for failure to state a claim).
Plaintiff is, therefore, subject to 28 U.S.C. § 1915(g)’s bar to filing civil
actions in forma pauperis unless he can show that he is under imminent
danger of serious physical injury, which he has not done. The Court will
dismiss Plaintiff’s Complaint without prejudice and vacate the Order granting
Plaintiff leave to proceed in forma pauperis.2
III.

CONCLUSION
For the reasons stated herein, the Court will dismiss Plaintiff’s

Complaint as barred by the three-strikes provision of 28 U.S.C. § 1915(g)
and vacate the Order granting Plaintiff in forma pauperis status.

Even if Plaintiff’s Complaint were not subject to dismissal under § 1915(g), it would be
barred by Heck.
2

3

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IT IS, THEREFORE, ORDERED that:
(1)

The Order waiving the initial partial filing fee and directing

monthly payments from Plaintiff’s inmate account [Doc. 8] is VACATED, and
Plaintiff’s Application to Proceed in District Court Without Prepaying Fees
and Costs [Doc. 2] is DENIED.
(2)

Plaintiff’s Complaint is DISMISSED WITHOUT PREJUDICE

pursuant to 28 U.S.C. § 1915(g).
(3)

The Clerk is respectfully instructed to update the docket in this

matter to designate Docket No. 3 as a Motion to Amend Complaint.
(4)

Plaintiff’s motions to amend complaint [Docs. 3, 4] are DENIED

as moot.
The Clerk of Court’s Financial Department is instructed to reimburse
Plaintiff for funds that have been collected for the payment of his filing fee, if
any, and to mail a copy of this Order to the Scotland Correctional Institution
so that withdrawals from Plaintiff’s inmate account for this case can be
terminated.
The Clerk is respectfully instructed to terminate this action.
IT IS SO ORDERED.

Signed: November 18, 2021

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