Turner v. Welkal et al

Filing 233

REPORT AND RECOMMENDATION: For the reasons stated above, the undersigned recommends (1) that Defendants' motion for judgment on the pleadings be granted, (2) that the prior order (Docket Entry No. 6 ) granting Plaintiff leave to proceed in for ma pauperis be vacated, and (3) that Plaintiff Turner be given a reasonable period within which to pay the required filing fee as a condition for his continued prosecution of this action. Signed by Magistrate Judge John S. Bryant on 4/5/2016. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
AUTHOR RAY TURNER,

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Plaintiff
v.
DAN WELKAL, et al.,
Defendants
TO:

No. 3:12-0915
Judge Trauger/Bryant
Jury Demand

THE HONORABLE ALETA A. TRAUGER
DISTRICT JUDGE
REPORT AND RECOMMENDATION
The

Defendants

have

jointly

filed

their

motion

for

judgment on the pleadings (Docket Entry No. 196). As grounds,
Defendants argue that Plaintiff Turner violated the “three strike
rule” contained in 28 U.S.C. § 1915(g) and that Plaintiff therefore
should not be permitted to maintain this action without paying the
required filing fee. Plaintiff Turner has filed a response in
opposition (Docket Entry No. 226).
For the reasons stated below, the undersigned Magistrate
Judge finds that Defendants’ motion should be granted.
STATEMENT OF THE CASE
Plaintiff Turner, a prisoner currently proceeding pro se
and

in forma pauperis, has filed his civil rights complaint

alleging

that

Defendants

are

guilty

of

religious

and

racial

discrimination by refusing to allow Plaintiff to pray at the times
and in the manner prescribed by his religion (Muslim) and by
failing to serve him a proper Halal diet required by his faith.

Plaintiff also alleges that Defendants have retaliated against him
for filing grievances by giving him excessive disciplinary writeups. Finally, Plaintiff Turner claims that Defendants have failed
to provide an adequate law library while he was in custody of the
Davidson County Sheriff’s office.
ANALYSIS
Title 28, § 1915(g), of the United States Code provides
as follows:
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
is frivolous, malicious, or fails to state a claim upon
which relief may be granted, unless the prisoner is under
imminent danger of serious physical injuries.
This provision has come to be called the “three strike rule.”
Defendants state that before Plaintiff Turner filed the
complaint in this case on September 6, 2012, he had already had
more than three prior cases dismissed on grounds that would
constitute

a

“strike”

under

28

U.S.C.

§

1915(g).

Therefore,

according to Defendants, Plaintiff Turner should be allowed to
maintain this action only after paying the required filing fee.
The five prior cases relied upon by Defendants are the
following:
1.

Turner v. Borrower, et al., Case No. 3:12-0206
(M.D. Tenn.), filed while “an inmate” and dismissed
on March 28, 2012, for failure to state a claim.
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2.

Turner v. Borrower, et al., Case No. 3:12-0284
(M.D. Tenn.), filed while “an inmate” and also
dismissed on March 28, 2012, for failure to state a
claim.

3.

Turner v. Cooper, et al., Case No. 3:10-1224 (M.D.
Tenn.), filed while “an inmate” and dismissed on
January 3, 2011, for failure to state a claim.

4.

Turner v. Dotson, Case No. 3:04-0167 (M.D. Tenn.),
filed while “a state prisoner” and dismissed on
November 14, 2005, on a motion to dismiss pursuant
to Rule 12(b)(6).

5.

Turner v. Raney, et al., Case No. 1:01-cv-1343-JDT
(W.D. Tenn.), filed while “an inmate” and dismissed
on July 8, 2002, based upon a motion to dismiss
under Rule 12(b)6).

Upon a review of the records of the foregoing cases, the
undersigned has determined that the Turner v. Dotson case involved
a petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2254. The Sixth Circuit has held that the fee requirements of 28
U.S.C. § 1915(g) do not apply to habeas corpus petitions. Kincade
v. Sparkman, 117 F.3d 949 (6th Cir. 1997). However, it does appear
from the record that the other four cases listed by Defendants were
dismissed on grounds that would implicate the “three strike rule.”
Accordingly, the undersigned finds that Plaintiff Turner should not
be allowed to proceed in forma pauperis in this action.
For the reasons stated above, the undersigned Magistrate
Judge finds that Defendants’ motion for judgment on the pleadings
should be granted and that Plaintiff Turner should be required to

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pay the required filing fee as a condition for prosecuting this
action.
RECOMMENDATION
For the reasons stated above, the undersigned recommends
(1) that Defendants’ motion for judgment on the pleadings be
granted, (2) that the prior order (Docket Entry No. 6) granting
Plaintiff leave to proceed in forma pauperis be vacated, and (3)
that Plaintiff Turner be given a reasonable period within which to
pay the required filing fee as a condition for his continued
prosecution of this action.
Under Rule 72(b) of the Federal Rules of Civil Procedure,
any

party

has

14

days

from

receipt

of

this

Report

and

Recommendation in which to file any written objections to this
Recommendation with the District Court. Any party opposing said
objections shall have 14 days from receipt of any objections filed
in this Report in which to file any responses to said objections.
Failure to file specific objections within 14 days of receipt of
this Report and Recommendation can constitute a waiver of further
appeal of this Recommendation. Thomas v. Arn, 474 U.S. 140 106 S.
Ct. 466, 88 L.Ed.2d 435 (1985), Reh’g denied, 474 U.S. 1111 (1986).
ENTER this 5th day of April, 2016.
/s/ John S. Bryant
JOHN S. BRYANT
United States Magistrate Judge

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