Cabbagestalk v. Stirling et al
ORDER AND OPINION: The Court DENIES the motion for reconsideration (Dkt. No. 34 ) and ENJOINS Plaintiff as herein provided. AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 1/9/2018.(prou, )
IN THE UNITED ST ATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Director Bryan P. Sterling, et al.,
Civil Action No. 5:17-2703-RMG
ORDER AND OPINION
This matter is before the Court on Plaintiffs motion to reconsider. On December 13, 2017,
the Court denied Plaintiffs motion for a temporary restraining order, dismissed the complaint with
prejudice, and notified Plaintiff that the Court is considering the imposition of a prefiling
injunction against Plaintiff and directed Plaintiff to show cause why an injunction should not be
imposed. For the reasons set forth below, the Court denies the motion to reconsider and imposes
a prefiling injunction.
Plaintiff is serving an 18-year sentence for armed robbery at the Perry Correctional
Institution of the South Carolina Department of Corrections. Plaintiff claims that prison guards
are harassing him and conspiring with inmates to kill him. Plaintiff seeks several hundred thousand
dollars in damages and an order transferring him to the Maricopa County Jail in Arizona.
As the Court noted in its Order of December 13, 2017, Plaintiff is an extreme serial litigant
who has filed at least 23 other actions in this Court, 8 actions in the Richland County Court of
Common Pleas, and 7 mandamus actions in the Fourth Circuit. Plaintiffs ability to file informa
pauperis was revoked years ago under the three-strike provision of 28 U.S.C. § 1915(g) for
frivolous filings. E.g., Cabbagestalk v. Smith, Civ. No. 5:14-268-RMG (D.S.C. May 2, 2014).
That has not prevented Plaintiff from continuing to file frivolous lawsuits. Plaintiff often invokes
the "imminent danger of serious physical injury" exception to the three-strike rule. (See Dkt. No.
9 at 1-2.) Here, Plaintiff alleges that prison guards and inmates are conspiring to kill him.
The Court previously held that Plaintiffs complaint and motion for a restraining order do
not present a plausible claim that Plaintiff is in imminent danger of serious physical injury.
Plaintiff now moves for reconsideration.
Like all of Plaintiffs filings, Plaintiffs motion to
reconsider is rambling and difficult to decipher. He argues that the South Carolina Department of
Corrections "has murdered
of my comrad[e]s" and he repeatedly states his claims that
various persons are trying to kill him and that judges who rule against his claim are biased. (Dkt.
No. 34.) He also claims he never asked for transfer to the Maricopa County Jail in Arizona, but
rather only asked to be removed from the custody of the State of South Carolina. That distinction
is both immaterial and false-Plaintiff specifically asked for transfer to "a county jail or work
release" in Phoenix, Arizona. (Dkt. No. 21-1 at 2.) Finally, Plaintiff attached to his motion to
reconsider his copy of the Court' s order of December 13, 2017 with the words "Void" and "Null"
handwritten over the text.
Plaintiff was directed to explain why a prefiling injunction should not be imposed. In
response, Plaintiff merely states "a prefiling injunction should not be filed against me because I'm
only doing what the law allows me to do ask for help from the court (if) my life[']s in danger
which it is." (Dkt. No. 34.) As the Court previously held, however, wild allegations that prison
staff and inmates are conspiring against Plaintiff are not "magic words" that permit endless abuse
of judicial process. Plaintiffs forty frivolous lawsuits over the last eleven years is a clear abuse
of process that the Court can no longer tolerate. Plaintiff was informed that in the Court' s view,
the only available option to control his abuse of process is a prefiling injunction. Plaintiff has now
been provided notice and a meaningful opportunity to be heard. Cf Cromer v. Kraft Foods N
Am., Inc. , 390 F.3d 812, 819 (4th Cir. 2004). The Court's view remains that the only available
option to control Plaintiffs abuse of judicial process is a prefiling injunction.
For the foregoing reasons and for the reasons set forth in the Court's order of December
13, 2017, and to protect the courts and any potential defendants from the harassment of frivolous
and vexatious litigation initiated by Plaintiff, the court issues the following injunctions:
The court ENJOINS Plaintiff from filing any new action or proceeding in any
federal court, other than a petition for habeas relief, without first obtaining leave of that court; and
The court ENJOINS Plaintiff from filing any further papers in any case, either
pending or terminated, in the District of South Carolina, without first obtaining leave of court.
These injunctions apply only to pro se filings and do not apply to any action filed by
counsel on Plaintiffs behalf. Leave of court for pro se filings shall be forthcoming upon Plaintiffs
demonstrating through a properly filed motion that the proposed filing: (1) can survive a challenge
under Rule 12 of the Federal Rules of Civil Procedure; (2) is not barred by principles of issue or
claim preclusion; (3) is not repetitive or violative of a court order; and (4) is in compliance with
Rule 11 of the Federal Rules of Civil Procedure.
Because of Plaintiffs long history of frivolous filings, the Court finds it likely Plaintiff
will attempt to ignore this Order. The court therefore ORDERS the Clerk to refuse to accept any
submissions for filing except petitions for leave of court, unless such filings are accompanied by
an order of this court granting leave. In the event that Plaintiff succeeds in filing papers in violation
of this order, upon such notice, the Clerk, under authority of this Order, immediately and
summarily shall strike the pleadings or filings. This Order does not apply to the filing of timely
notices of appeal from this Court to the Court of Appeals and papers solely in furtherance of such
Plaintiff is enjoined only from filing frivolous pro se papers in federal court. Plaintiff may
file pro se if he can show his claims are not frivolous. Actions by counsel on behalf of Plaintiff
are unaffected. Plaintiffs ability to seek appellate review is unaffected. Plaintiffs ability to seek
habeas relief is unaffected. Plaintiffs access to state courts is unaffected. The Court therefore
finds that the above prefiling injunction is narrowly tailored to halt Plaintiffs ongoing abuse of
process in federal court.
For the foregoing reasons, the Court DENIES the motion for reconsideration (Dkt. No. 34)
and ENJOINS Plaintiff as herein provided.
AND IT IS SO ORDERED.
United States Dist ict Court Judge
January !_, 2018
Charleston, South Carolina
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