Rivera v. Stirling et al

Filing 46

ORDER RULING ON REPORT AND RECOMMENDATION accepts but for differing reasons 42 Report and Recommendation insofar as the Magistrate Judge recommends that Plaintiff's complaint be dismissed. Defendants' Motion to D ismiss and for Designation as a Strike 18 is DENIED as moot. Plaintiff's motions 30 33 38 are also DENIED as moot. Plaintiff's complaint 1 is DISMISSED without prejudice. Signed by Honorable J Michelle Childs on 7/27/2016. (gpre, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
Kenneth Syncere Rivera, a/k/a
Kenneth D. Rivera, a/k/a Kenneth
Rivera,
Plaintiff
v.

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Bryan P. Stirling, Director; Joseph
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McFadden, Warden; Ryshema Davis,
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Nutritionist IV; Mr. Jones, FSS IV; Mr.
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Contino, Chaplain,
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Defendants.
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____________________________________)

Criminal Action No.: 8:15-cv-04482-JMC

ORDER

Plaintiff Kenneth Rivera (“Plaintiff”) proceeding pro se and in forma pauperis, filed this
civil rights action pursuant to 42 U.S.C. § 1983 alleging that his rights under the Free Exercise
Clause of the First Amendment have been violated by Defendants who have refused to provide
him with the proper vegetarian diet as required by his Muslim faith. (ECF No. 1.) Plaintiff further
alleges that after he filed administrative complaints, Defendants retaliated against him by sending
meat with his meal. (ECF No. 1.) This matter is now before the court on Defendants’ Motion to
Dismiss and for Designation as a Strike. (ECF No. 18.) Plaintiff also filed motions for extension
of time to prepare a defense (ECF No. 30), to compel (ECF No. 33), and to appoint counsel (ECF
No. 38.)
In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, the matter was referred to
United States Magistrate Judge Jacquelyn Austin, for pre-trial handling. On June 24, 2016, the
Magistrate Judge issued a Report and Recommendation (“Report”) recommending the court grant
Defendants’ Motion to Dismiss and deny Plaintiff’s outstanding motions as moot. (ECF No. 42.)
Subsequently, Plaintiff filed timely Objections to the Report. (ECF No. 44.) For the reasons stated

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herein, the court ACCEPTS the Report insofar as the Magistrate Judge recommends that
Plaintiff’s complaint should be dismissed, but the court departs from the reasoning of the
Magistrate Judge as to the grounds on which the complaint is to be dismissed. The Magistrate
Judge determined that Plaintiff’s complaint should be dismissed because he failed to exhaust his
administrate remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e, as a
prerequisite for a civil rights action. However, this court finds that Plaintiff’s complaint is subject
to dismissal pursuant to 28 U.S.C. § 1915(g).
Over the preceding four years, Plaintiff has filed at least twenty cases in federal court. The
vast majority of these cases have resulted in either dismissal of Plaintiff’s complaint or a grant of
summary judgment in favor of the defendants. Pursuant to 28 U.S.C. § 1915(g), if a “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 grounds that it is frivolous, malicious,
or fails to state a claim upon which relief may be granted,” the prisoner is unable to proceed under
section 1915 unless “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). In
order for a case to be properly designated as a strike, it must be dismissed in its entirety on grounds
that it is frivolous, malicious, or fails to state a claim upon which relief may be granted. Tolbert
v. Stevenson, 635 F.3d 646 (4th Cir. 2011)
On June 15, 2016, this court entered an order in Kenneth Rivera v. Scott Bodiford, Civil
Action No. 8:15-3272 (D.S.C. filed August 18, 2015) dismissing Plaintiff’s civil rights action for
failure to state a claim upon which relief could be granted. (8:15-3272; ECF No. 15.) The court
also designated a strike pursuant to 28 U.S.C. § 1915(g). (Id.) On June 20, 2016, this court entered
an order in Kenneth Rivera v. Bryan Stirling, Civil Action No. 8:15-2135 (D.S.C. filed May 29,
2015) dismissing Plaintiff’s civil rights action for failure to state a claim upon which relief can be

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granted. (8:15-2135; ECF No. 16.) The court also designated a strike pursuant to 28 U.S.C. §
1915(g). (Id.) Finally, on June 30, 2016, this court entered an order in Kenneth Rivera v. Bryan
Stirling, Civil Action No. 8:15-2995 (D.S.C. filed July 31, 2015) dismissing Plaintiff’s civil rights
action for failure to state a claim upon which relief can be granted. (8:15-2995; ECF No. 15.) The
court designated the filing in that case a strike pursuant to 28 U.S.C. § 1915(g) as well. (Id.)
To date, Plaintiff has accumulated at least three strikes pursuant to section 1915(g).
Plaintiff does not allege, nor does it appear to this court based on Plaintiff’s complaint, that Plaintiff
is under imminent danger of serious physical injury. Accordingly, Plaintiff is unable to proceed
in forma pauperis with this claim in this court. Although prisoners have a constitutional right of
access to the courts, that right is not without limits. Blakely v. Wards, 738 F.3d 607, 624 (4th Cir.
2013) (Motz, J., dissenting). “The three-strikes rule imposes a notable limit on a prisoner’s ability
to proceed in forma pauperis (“IFP”). Id. Thus, Plaintiff’s complaint must be dismissed without
prejudice to his right to re-file this action subject to the payment of the necessary filing fee.
For the foregoing reasons, this court ACCEPTS, but for differing reasons, the Report
and Recommendation of the Magistrate Judge (ECF No. 42) insofar as the Magistrate Judge
recommends that Plaintiff’s complaint be dismissed. Defendants’ Motion to Dismiss and for
Designation as a Strike (ECF No. 18) is DENIED as moot. Plaintiff’s motions (ECF Nos. 30, 33,
38) are also DENIED as moot. Plaintiff’s complaint (ECF No. 1) is DISMISSED without
prejudice pursuant to 28 U.S.C. § 1915(g).
IT IS SO ORDERED.

United States District Judge

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July 27, 2016
Columbia, South Carolina

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