Burnside v. Weedon

Filing 5

REPORT AND RECOMMENDATION recommending 1 Complaint filed by Anthony B Burnside be dismissed without prejudice, as plaintiff has "struck out." Objections to R&R due by 9/1/2006. Signed by Judge William M Catoe on 8/14/06. (ladd, )

Burnside v. Weedon

Doc. 5

6:06-cv-02208-HMH

Date Filed 08/14/2006

Entry Number 5

Page 1 of 4

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA Anthony B. Burnside, # 259648, aka Anthony Bernard Burnside, ) C/A No. 6:06-2208-HMH-WMC ) ) ) Plaintiff, ) vs. ) Report and Recommendation ) Kenneth B. Weedon, Assoc. Warden, ) ) Defendant. ) ____________________________________________) This is a civil rights action filed pro se by a state prison inmate.1 In addition to the Complaint, Plaintiff has filed financial documents indicating a desire on his part to file this case without paying the full filing fee. (Entry 2). It may be judicially noticed that, under most circumstances, Plaintiff is precluded from filing cases in this Court without paying the full filing free because he has, in the past, filed three or more frivolous lawsuits in this Court. See Civil Action Nos. 6:06-620-HMH; 6:06-423-HMH; 6:05-2212-HMH; 6:04-939HMH; see also Aloe Creme Laboratories, Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970) (This Court may take judicial notice of its own records.). In other words, Plaintiff has "struck out" under the provisions of the Prison Litigation Reform Act [PLRA]. 28 U.S.C. § 1915(g). A review of the Complaint filed by Plaintiff in this case makes it clear that Plaintiff should not be permitted to pursue this case in this Court. The Complaint does not disclose that Plaintiff "is under imminent danger of serious physical injury" from Defendant's actions.

Pursuant to 28 U.S.C. §636(b)(1), and Local Rule 73.02(B)(2)(e), D.S.C., this m a g is tr a te judge is a u th o r iz e d to review all pretrial m a tte r s in such pro se cases and to subm it findings and recom m e n d a tio n s t o the District Court. See also 28 U.S.C. § § 1915(e); 1915A (as soon as possible after docketing, district c o u r ts should review prisoner cases to determ in e whether they are subject to sum m a r y dism is s a l) .

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Plaintiff complains only about the response he received from Defendant in connection with Plaintiff's loss of a job that he had been doing while incarcerated. His allegations make no mention whatsoever of any physical injury or even of any potential physical harm resulting from Defendant's actions, and, as a result, he cannot show that this case falls within the three-strikes' "imminent physical injury" exception. The "three strikes provision" was enacted by Congress in an attempt to prevent frivolous litigation from clogging the dockets of federal courts. Under this provision, prisoners who have filed prior frivolous cases in a federal court are barred from pursuing certain types of civil rights litigation. See Senate Select Committee on Presidential Campaign Activities v. Nixon, 366 F. Supp. 51, 55 n.6 (D. D.C. 1973)("When it comes to the jurisdiction of the federal courts, truly to paraphrase the scripture, the Congress giveth and the Congress taketh away."). The United States Court of Appeals for the Second Circuit has held that in using the present tense in § 1915(g) and also the term "imminent" (meaning "impending"), Congress intended that "the danger must exist at the time the complaint is filed." The "imminent danger" exception does not apply to "those harms that had already occurred." The Second Circuit also noted unanimity among the federal circuits addressing this issue. Malik v. McGinnis, 293 F. 3d 559, 561-562 (8th Cir. 2002), citing Abdul-Akbar v. McKelvie, 239 F. 3d 307, 323 (3rd Cir. 2001), Medberry v. Butler, 185 F. 3d 1189, 1193 (11th Cir. 1999), and Banos v. O'Guin, 144 F. 3d 883, 884 (5th Cir. 1998). Additionally, it clearly does not apply where no danger has even been alleged. Because Plaintiff's allegations in this case do not show that Plaintiff is in "imminent danger of serious physical harm" from any of the matters alleged, it is not necessary for the Court to reach

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any of the issues arguably raised in this case as this action is subject to dismissal under the "three strikes" provision of 28 U.S.C. § 1915(g)(the Prison Litigation Reform Act).2

Recommendation Accordingly, it is recommended that the District Court dismiss the Complaint in this case without prejudice and without issuance and service of process. See Denton v. Hernandez; Neitzke v. Williams; Haines v. Kerner; Brown v. Briscoe, 998 F.2d 201, 202-04 & n. * (4th Cir. 1993); Boyce v. Alizaduh; Todd v. Baskerville, 712 F.2d at 74; see also 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A (as soon as possible after docketing, district courts should review prisoner cases to determine whether they are subject to summary dismissal). Plaintiff's attention is directed to the important notice on the next page.

s/W illiam M. Catoe United States Magistrate Judge August 14, 2006 Greenville, South Carolina

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28 U.S.C. § 1915(g) provides:

( g ) in no event shall a prisoner bring a civil action or appeal a judgem e n t in a civil action or proceeding under this section if the prisoner has, on 3 or m o r e prior occasions, while incarcerated or detained in any facility, brought a n action or appeal in a court of the United States that was dism is s e d on the g r o u n d s that it is frivolous, m a lic io u s , or fails to state a claim upon which r e lie f m a y be granted, unless the prisoner is under im m i n e n t danger of s e r io u s physical injury. ( e m p h a s is added).

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Notice of Right to File Objections to Magistrate Judge's "Report and Recommendation" & The Serious Consequences of a Failure to Do So
T h e parties are hereby notified that any objections to the attached Report and Recommendation (or Order and R e c o m m e n d a t io n ) must be filed within ten (10) days of the date of service. 28 U.S.C. § 636; Fed. R. Civ. P. 72(b). The tim e calculation of this ten-day period excludes weekends and holidays and provides for an additional three days for filin g by mail. Fed. R. Civ. P. 6. A magistrate judge makes only a recommendation, and the authority to make a final d e t e r m in a t io n in this case rests with the United States District Judge. See Mathews v. W e b e r , 423 U.S. 261, 270-71 ( 1 9 7 6 ) ; Estrada v. W itk o w s k i, 816 F. Supp. 408, 410 (D.S.C. 1993). D u r in g the period for filing objections, but not thereafter, a party must file with the Clerk of Court specific, w r itte n objections to the Report and Recommendation, if he or she wishes the United States District Judge to consider a n y objections. Any written objections must specifically identify the portions of the Report and Recommendation t o which objections are made and the basis for such objections. See Keeler v. Pea, 782 F. Supp. 42, 43-44 (D.S.C. 1 9 9 2 ) ; Oliverson v. W e s t Valley City, 875 F. Supp. 1465, 1467 (D. Utah 1995). Failure to file specific, written o b j e c tio n s shall constitute a waiver of a party's right to further judicial review, including appellate review, if the r e c o m m e n d a t i o n is accepted by the United States District Judge. See United States v. Schronce, 727 F.2d 91, 94 & n. 4 ( 4 t h Cir. 1984); W r i g h t v. Collins, 766 F.2d 841, 845-847 & nn. 1-3 (4th Cir. 1985). Moreover, if a party files specific o b j e c tio n s to a portion of a magistrate judge's Report and Recommendation, but does not file specific objections to other p o r tio n s of the Report and Recommendation, that party waives appellate review of the portions of the magistrate judge's R e p o r t and Recommendation to which he or she did not object. In other words, a party's failure to object to one issue i n a magistrate judge's Report and Recommendation precludes that party from subsequently raising that issue on appeal, e v e n if objections are filed on other issues. See Howard v. Secretary of HHS, 932 F.2d 505, 508-509 (6th Cir. 1991); s e e also Praylow v. M a r t i n , 761 F.2d 179, 180 n. 1 (4th Cir.)(party precluded from raising on appeal factual issue to w h i c h it did not object in the district court), cert. denied, 474 U.S. 1009 (1985). In Howard,, the court stated that g e n e r a l, non-specific objections are not sufficient:
A general objection to the entirety of the [magistrate judge's] report has the sam e effects a s w o u l d a failure to object. The district court's attention is not focused on any specific issues for r e v i e w , thereby making the initial reference to the [m a g i s t r a t e judge] useless. * * * This d u p l i c a t io n of time and effort w a s t e s judicial resources rather than saving them , and runs contrary t o the purposes of the M a g i s t r a t e s A c t . * * * W e w o u l d hardly countenance an appellant's brief s i m p l y objecting to the district court's determination w i t h o u t explaining the source of the error.

A c c o r d Lockert v. Faulkner, 843 F.2d 1015, 1017-1019 (7th Cir. 1988), where the court held that the appellant, who p r o c e e d e d pro se in the district court, was barred from raising issues on appeal that he did not specifically raise in his o b j e c t i o n s to the district court:
J u s t as a complaint stating only 'I complain' states no claim, an objection stating only 'I object' p r e s e r v e s no issue for review . * * * A district judge should not have to guess w h a t arguments an o b j e c t i n g party depends on w h e n review i n g a [magistrate judge's] report.

S e e also Branch v. Martin, 886 F.2d 1043, 1046 (8th Cir. 1989)("no de novo review if objections are untimely or g e n e r a l " ; which involved a pro se litigant); Goney v. Clark, 749 F.2d 5, 7 n. 1 (3d Cir. 1984)("plaintiff's objections

This notice, hereby, apprises the parties of the consequences of a failure to file specific, written objections. See W r ig h t v. Collins; Small v. Secretary
la c k e d the specificity to trigger de novo review"). o f HHS, 892 F.2d 15, 16 (2d Cir. 1989). Filing by mail pursuant to Fed. R. Civ. P. 5 may be accomplished by mailing o b j e c t io n s addressed as follows:

Larry W. Propes, Clerk United States District Court Post Office Box 10768 Greenville, South Carolina 29603