Rogers v. Brinkley

Filing 5

REPORT AND RECOMMENDATIONS recommending 1 Complaint filed by Hayward Leon Rogers, be dismissed under the "three strikes" rule of 28 U.S.C. 1915(g). Objections to R&R due by 3/31/2006. Signed by Judge Bruce Howe Hendricks on 3/14/06. (kmca)

Rogers v. Brinkley

Doc. 5

8:06-cv-00727-MBS

Date Filed 03/14/2006

Entry Number 5

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UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA

Hayward Leon Rogers, # 278510, Plaintiff vs. Lt. Brinkley, Defendant.

) C/A No. 8:06-727-MBS-BHH ) ) ) ) Report and Recommendation ) ) ) )

The plaintiff, Hayward L. Rogers ("Plaintiff"), proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983.1 Plaintiff is an inmate at McCormick Correctional Institution, a facility of the South Carolina Department of Corrections (SCDC), and files this action in forma pauperis under 28 U.S.C. § 1915. The complaint names an SCDC employee as the sole defendant.2 Plaintiff claims race discrimination, cruel and unusual punishment, denial of access to the courts and retaliation for filing grievances. Complaint at 2. Plaintiff seeks monetary damages, as well as injunctive relief. Complaint at 5. The complaint should be dismissed pursuant to 28 U.S.C. § 1915(g). Pro Se and In Forma Pauperis Review Under established local procedure in this judicial district, a careful review has been made of the pro se complaint pursuant to the procedural provisions of 28 U.S.C. § 1915;

Pursuant to the provisions of 28 U.S.C. §636(b)(1)(B), and Local Rule 73.02(B)(2)(d), D.S.C., the undersigned is authorized to review such complaints for relief and submit findings and recommendations to the District Court. Title 28 U.S.C. § 1915A (a) provides that "[t]he court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity."
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28 U.S.C. § 1915A; and the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996). This review has been conducted in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Maryland House of Correction, 64 F.3d 951 (4th Cir. 1995) (en banc), cert. denied, 516 U.S. 1177 (1996); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983). The complaint herein has been filed pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. To protect against possible abuses of this privilege, the statute allows a district court to dismiss the case upon a finding that the action "fails to state a claim on which relief may be granted" or is "frivolous or malicious." § 1915(e)(2)(B)(i), (ii). A finding of frivolity can be made where the complaint "lacks an arguable basis either in law or in fact." Denton v. Hernandez, 504 U.S. 25, 31 (1992). Hence, under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. Neitzke v. Williams, 490 U.S. 319 (1989); Allison v. Kyle, 66 F.3d 71 (5th Cir. 1995). This Court is required to liberally construe pro se documents, Estelle v. Gamble, 429 U.S. 97 (1976), holding them to a less stringent standard than those drafted by attorneys, Hughes v. Rowe, 449 U.S. 9 (1980) (per curiam). Even under this less stringent standard, however, the pro se complaint is subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so, but a

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district court may not rewrite a petition to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), or construct the plaintiff's legal arguments for him, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993), or "conjure up questions never squarely presented" to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985), cert. denied, 475 U.S. 1088 (1986). The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Department of Social Services, 901 F.2d 387, (4th Cir. 1990). Discussion The plaintiff's claims in this case are subject to summary dismissal under the "three strikes" rule of the Prison Litigation Reform Act. This rule, codified at U.S.C. § 1915(g), provides: In no event shall a prisoner bring a civil action or appeal a judgement 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. The Congress enacted the three-strikes rule to bar prisoners3, such as the plaintiff, who have filed prior frivolous litigation in a federal court, from pursuing certain types of federal civil rights litigation without payment of the filing fee. See Senate Select Committee on Presidential Campaign Activities v. Nixon, 366 F. Supp. 51, 55 & n. 6 (D.D.C. 1973); Bay Title 28 U.S.C. § 1915A defines prisoner as "any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program." 3
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View, Inc. v. AHTNA, Inc., 105 F.3d 1281, 1283, (9th Cir. 1997); NGS American, Inc. v. Barnes, 998 F.2d 296, 298 (5th Cir. 1993); and Mirabal v. GMAC, 537 F.2d 871 (7th Cir. 1976). This Court may take judicial notice that the plaintiff has previously filed more than three (3) cases dismissed and deemed a strike under § 1915(g) by this Court.4 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. Bank & Trust Co., 209 F2d 570, 572 (4th Cir. 1954) (approving trial court's taking judicial notice of proceedings had before it in prior suit with same parties). In light of the plaintiff's prior "strikes," he cannot proceed with the instant complaint without prepayment of the full filing fee unless his claim satisfies the exception for "imminent" physical harm provided by the three-strikes rule. 28 U.S.C. § 1915(g); see Banos v O'Guin, 144 F.3d 883 (5th Cir. 1998). The complaint does not fit within this exception as Plaintiff does not allege any danger of serious physical injury to himself. The complaint should be dismissed. Recommendation It is recommended that the complaint be dismissed under the "three strikes" rule of 28 U.S.C. § 1915(g). See Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-325 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Brown v. Briscoe, 998 F2d 201, 202-04 & n.* (4th Cir.1993); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A (as soon as possible after docketing, district See Rogers v. Eleventh Circuit Solicitor's Office, C/A No. 9:00-783; Rogers v. Eleventh Circuit Solicitor's Office, C/A No. 9:00-1365; Rogers v. McMaster, C/A No. 8:04-690; and Rogers v. Hendricks, C/A No. 6:04-22428, for prior cases deemed strikes for purposes of 28 U.S.C. § 1915(g). 4
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courts should review prisoner cases to determine whether they are subject to summary dismissal). The plaintiff's attention is directed to the important notice on the next page.

Respectfully Submitted,

S/Bruce H. Hendricks United States Magistrate Judge March 14, 2006 Greenville, South Carolina

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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 plaintiff is 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 its service. 28 U.S.C. § 636 and Fed. R. Civ. P. 7 2 ( b ) . The time calculation of this ten-day period excludes weekends and holidays and provides for an additional three d a y s for filing by mail. Fed. R. Civ. P. 6. Based thereon, this Report and Recommendation, any objections thereto, and th e case file will be delivered to a United States District Judge fourteen (14) days after this Report and R e c o m m e n d a t i o n is filed. Advance Coating Technology, Inc. v. LEP Chemical, Ltd., 142 F.R.D. 91, 94 & n. 3 ( S .D .N .Y . 1992). A magistrate judge makes only a recommendation, and the authority to make a final determination i n this case rests with the United States District Judge. See Mathews v. W e b e r , 423 U.S. 261, 270-271 (1976); Estrada v . W itk o w s k i, 816 F. Supp. 408, 410 (D.S.C. 1993). D u r in g the ten-day period, but not thereafter, a party must file with the Clerk of Court specific, written o b j e c tio n s to the Report and Recommendation, if he or she wishes the United States District Judge to consider any o b j e c t i o n s . Any written objections must specifically identify the portions of the Report and Recommendation to w h i c h objections are made and the basis for such objections. Failure to file written objections shall constitute a w a i v e r of a party's right to further judicial review, including appellate review, if the recommendation is accepted by the U n i t e d States District Judge. See United States v. Schronce, 727 F.2d 91, 94 & n. 4 (4th Cir.), cert. denied, 467 U.S. 1 2 0 8 (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. Howard v. Secretary of HHS, 932 F.2d 505, 508-509 (6th Cir. 1991). See a ls o Praylow v. Martin, 761 F.2d 179, 180 n. 1 (4th Cir.) (party precluded from raising on appeal factual issue to which it did not object in the district court), cert. denied, 474 U.S. 1009 (1985). In Howard, supra, 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 same effects as would a failure t o object. The district court's attention is not focused on any specific issues for review, thereby making the initial reference t o the [magistrate judge] useless. * * * This duplication of time and effort wastes judicial resources rather than saving t he m, and runs contrary to the purposes of the Magistrates Act. * * * We would hardly countenance an appellant's brief s im ply objecting to the district court's determination without 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 ust as a complaint stating only 'I complain' states no claim, an objection stating only 'I object' preserves no issue for r e v i e w . * * * A district judge should not have to guess what arguments an objecting party depends on when reviewing 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; and Goney v. Clark, 749 F.2d 5, 7 n. 1 (3rd Cir. 1984) ("plaintiff's objections la c k e d the specificity to trigger de novo review"). This notice, hereby, apprises the plaintiff of the consequences of a f a i l u r e to file specific, written objections. See W r ig h t v. Collins, supra; Small v. Secretary of HHS, 892 F.2d 15, 16 (2nd C ir . 1989). Filing by mail pursuant to Fed. R. Civ. P. 5 may be accomplished by mailing objections addressed as follows:

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