Twitty v. Nationwide Insurance Comp et al

Filing 10

ORDER AND REPORT AND RECOMMENDATIONS that the complaint be dismissed without prejudice, re 1 Complaint, filed by Irving E Twitty, MOTIONS TERMINATED: denying 2 MOTION for Leave to Proceed in forma pauperis (Restricted Access) and ordering that the plaintiff shall have fifteen (15) days to pay the filing fee. Objections to R&R due by 10/19/2009. Signed by Magistrate Judge Paige J Gossett on 10/1/2009. (jpet, )

Download PDF
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA Irving E. Twitty, #270014 ) C/A No. 6:09-2381-RBH-PJG ) Plaintiff, ) ) vs. ) ) ORDER AND Nationwide Insurance Comp; ) REPORT AND RECOMMENDATION Patricia Dugan, CPCU, AiC; ) Cherylon Dean, Claims Invest.; ) Dennis Gillillan, Claims Manag; ) Alicia W. Cornelius, Regulator, ) ) Defendant. ) ____________________________________ ) This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) DSC. The Plaintiff, proceeding pro se, filed a motion to proceed in forma pauperis under 28 U.S.C. § 1915. However, Plaintiff's request to proceed in forma pauperis should be denied, and Plaintiff's Complaint should be dismissed if he fails to timely pay the filing fee. Plaintiff is subject to the "three strikes" rule of the Prison Litigation Reform Act, and he does not allege that he is under imminent danger of serious physical injury. The "three strikes" rule, codified at 28 U.S.C. § 1915(g), 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 its 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. Page 1 of 4 28 U.S.C. § 1915(g). This "three-strikes" rule was enacted to bar prisoners, such as Plaintiff, who have filed prior frivolous litigation in a federal court, from pursuing certain types of federal civil litigation without prepayment of the filing fee. To avoid application of 28 U.S.C. § 1915(g), a prisoner may prepay the filing fee in full. However, all civil lawsuits brought by prisoners seeking relief from a governmental entity, officer or employee are subject to screening pursuant to 28 U.S.C. § 1915A, even those lawsuits where the full filing fee is paid at the time of filing. See Green v. Young, 454 F.3d 405, 407 (4th Cir. 2006). Plaintiff is incarcerated at the Manning Correctional Institution of the South Carolina Department of Corrections. Plaintiff filed this Complaint alleging that he was injured in an automobile accident in 2006, apparently before his current incarceration. He requests monetary damages. Plaintiff is a frequent filer in the federal court system, and he previously has filed sixteen (16) civil actions in this court. This court may take judicial notice1 of the three civil actions filed by the plaintiff in which a "strike" has been entered because the civil actions were dismissed as frivolous, malicious, or failing to state a claim. See Twitty v. Petty et al., 3:00-47-DW S (D.S.C. Feb. 24, 2000); Twitty v. Stevens et al., 7:00-2615-DWS (D.S.C. Sept. 20, 2000); Twitty v. Werner et al., (D.S.C. January 9, 2002). In light of Plaintiff's prior "strikes," he cannot proceed with the instant Complaint unless his claim satisfies the exception for imminent physical harm provided by the "three1 See Aloe Creme Laboratories, Inc. v. Francine Co., 425 F. 2d 1295, 1296 (5th Cir. 1970) (the court may take judicial notice of its own records); see also Mann v. Peoples First Nat'l Bank & Trust Co., 209 F.2d 570, 572 (4th Cir. 1954) (approving trial court's taking judicial notice of proceedings had before it in prior suit with same parties). Page 2 of 4 strikes" rule. See 28 U.S.C. § 1915(g); Abdul-Akbar v. McKelvie, 239 F.3d 307, 314 (3d Cir. 2001); Banos v. O'Guin, 144 F.3d 883 (5th Cir. 1998). This Complaint does not fit within this exception to proceed in forma pauperis as Plaintiff does not allege that he is in imminent danger of serious physical injury. Therefore, to proceed with this Complaint, Plaintiff must pay the full filing fee. If Plaintiff timely pays the filing fee, his Complaint will then be subject to review by the undersigned to determine if service of process should be authorized. ORDER AND RECOMMENDATION Accordingly, it is hereby ORDERED that Plaintiff's motion to proceed in forma pauperis is denied. It is further ORDERED that Plaintiff shall have fifteen (15) days to pay the filing fee (currently $350). If Plaintiff fails to timely pay the filing fee, it is RECOMMENDED that the Complaint be dismissed without prejudice pursuant to 28 U.S.C. § 1915(g). _________________________________ Paige J. Gossett UNITED STATES MAGISTRATE JUDGE October 1, 2009 Columbia, South Carolina The plaintiff's attention is directed to the important notice on the next page. Page 3 of 4 Notice of Right to File Objections to Report and Recommendation The parties are advised that they may file specific written objections to this Report and Recommendation with the district judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. In the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must "only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005). Specific written objections must be filed within ten (10) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The time calculation of this ten-day period excludes weekends and holidays and provides for an additional three (3) days for filing by mail. Fed. R. Civ. P. 6(a) & (e). Filing by mail pursuant to Fed. R. Civ. P. 5 may be accomplished by mailing objections to: Larry W. Propes, Clerk United States District Court 901 Richland Street Columbia, South Carolina 29201 Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985). Page 4 of 4

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?