Barbour v. Attorney General of Virginia

Filing 4

OPINION AND ORDER ADOPTING 2 REPORT AND RECOMMENDATION denying 1 Motion for Leave to Proceed in forma pauperis, and dismissing without prejudice the complaint. If Plaintiff pays the required $350 filing fee within thirty (30) days of the date of this order, his complaint shall be reinstated. Signed by Chief Judge Christina Reiss on 8/14/2012. (pam)

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UNITED STATES DISTRICT COURT
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DISTRICT OF VERMONT
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Kenneth Edward Barbour,
Plaintiff,
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Case No. 5: 12-cv-134

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Attorney General of Virginia,
Defendant.

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OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S

REPORT AND RECOMMENDATION

(Docs. 1 and 2)
This matter comes before the court for a review of Magistrate Judge John
Conroy's June 28,2012 Report and Recommendation (R & R) in the above captioned
matter. (Doc. 2.) On June 14,2012, Plaintiff Kenneth Edward Barbour moved for leave
to file a complaint with this court in forma pauperis. l In the R & R, the Magistrate Judge
recommended denying Mr. Barbour's application to proceed in forma pauperis. (Doc. 1.)
On July 17,2012, Mr. Barbour objected to the R & R. (Doc. 3.) Mr. Barbour is self­
represented.
A district judge must make a de novo determination of those portions of a
magistrate judge's report and recommendation to which an objection is made. FED. R.
CIV. P. 72(b); 28 U.S.C. § 636(b)(1); Cullen v. United States, 194 F.3d 401, 405 (2d Cir.
1999). The district judge "may accept, reject, or modify, in whole or in part, the findings
IThe claims in the proposed complaint are not clear but Mr. Barbour appears to allege that
"leaders in the Executive Branch of government do not have certain blood types; that the
government is carrying out character assassination by means of the Patriot Act; that inmates are
entitled to weekend mail delivery to prisons; that he should be granted an allowance for alcohol
and tobacco products; and that there is a constitutional right to recreational drugs." (Doc. 2 at 1.)

or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); accord

Cullen, 194 F.3 d at 405. A district judge, however, is not required to review the factual
or legal conclusions of the magistrate judge as to those portions of a report and
recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,
150 (1985).
Mr. Barbour, who is currently imprisoned, has filed "over 350" actions or appeals
in a federal court during his imprisonment, some of which have been dismissed because
they were frivolous, malicious, or failed to state a claim upon which relief may be
granted. (Doc. 1 at 1.) On June 14,2012, Mr. Barbour filed an application with this
court to proceed in forma pauperis under 28 U.S.C. § 1915.
The Magistrate Judge reviewed Mr. Barbour's application, and concluded it
should be denied because Mr. Barbour had violated § 1915(g)'s "three strike" rule. See
28 U.S.C. § 1915(g) (prohibiting a prisoner from proceeding in forma pauperis if the
prisoner has on three or more prior occasions, while incarcerated, brought an action in a
federal court that was dismissed as frivolous, malicious, or failing to state a claim upon
which relief may be granted). In making this recommendation, the Magistrate Judge
cited previous district court decisions noting prior dismissals of Mr. Barbour's claims.

See Barbour v. All

u.s. Individual and Official Character Fed., State, and Local

Attornies, 2012 WL 1768077, at *1 (S.D. Ala. Apr. 30,2012) (collecting cases).
The Magistrate Judge further concluded that although Mr. Barbour alleges he is in
imminent physical danger, he appears to be characterizing potential legal injuries, such as
religious· discrimination, as imminent threats of physical harm. As a result, the
Magistrate Judge found that § 1915(g)'s narrow exception for prisoners "under imminent
physical danger" did not apply to Mr. Barbour. 28 U.S.C. § 1915(g).
Mr. Barbour objects to the R & R on two grounds. First, he argues that the
authorities cited in the R & R are not valid laws made pursuant to the U. S. Constitution

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or, in the alternative, that the cited authorities cannot override his constitutional rights. 2
Second, he argues that filing a lawsuit is an "absolute right," since lawsuits constitute
"arms" for the purposes of the Second Amendment. (Doc. 3 at 1.)
With regard to Mr. Barbour's first objection, the circuit court opinions cited by the
Magistrate Judge have not been overruled3 and thus are a proper legal basis for his
conclusion that the injuries Mr. Barbour alleges do not constitute imminent physical
harm.
As for Mr. Barbour's argument that § 1915(g) unlawfully infringes upon the
"absolute right to sue pursuant [to the] United States Constitution," Doc. 3 at 1, the
Second Circuit has upheld § 1915(g)'s constitutionality as a valid exercise of
congressional power. See Polanco v. Hopkins, 510 F.3d 152, 156 (2d Cir. 2007) (quoting

Rodriguez v. Cook, 169 F.3d 1176,1180 (9th Cir. 1999)); see also Rodriguez v. Goord,
2009 WL 3122951, at *3 (N.D.N.Y. Sept. 28, 2009) (rejecting "a facial attack on the
constitutionality of28 U.S.C. § 1915(g)" as meritless after Polanco). In doing so, the
Second Circuit noted that prisoners do not have a constitutional right to in forma pauperis
status and thus it "can be extended or limited by Congress." Polanco, 510 F.3d at 156
(internal quotations and citation omitted).
With respect to Mr. Barbour's second objection, the Second Amendment protects
the right "to keep and bear Arms." U.S. CONST. amend. II; see also Dist. ofColumbia v.
Mr. Barbour writes, "Plaintiff establish[es] the authorities cited in this cas[e's] R & R not to be
in absolute United States Constitution proportion or dimension Treaty of United States Law and
U.S. Constitution Equity pursuant of United States Federal Const. Article VI-2 and Article 111-2­
1 United States Constitution." (Doc. 3 at 1.) He also expresses a concern about "absolute
judicial power extended [absent] Law and Equity pursuant to Art. III United States
Constitution." (Doc. 3 at 2.)
2

3See Chavis v. Chappius, 618 F.3d 162, 169-70 (2d Cir. 2010) (holding that danger of serious

physical injury is assessed at the time the complaint is filed, that it is assessed for seriousness,
and that conclusory allegations of imminent danger are insufficient); Lewis v. Sullivan, 279 F.3d
526, 531 (7th Cir. 2002) (restricting the imminent danger exception to cases in which the danger
is "real and proximate"); Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir. 2003) ("Courts also
deny leave to proceed [in forma pauperis] when a prisoner's claims ofimminent danger are
conclusory and ridiculous.").
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Heller, 554 U.S. 570, 628-30 (2008). Mr. Barbour cites no authority for extending this
right to include filing lawsuits in forma pauperis and the court has found none.
Because Mr. Barbour has not otherwise objected to the R & R and because the
court agrees with the Magistrate Judge's conclusions, the court hereby ADOPTS the
Magistrate Judge's R & R as the Opinion and Order ofthe court, DENIES Mr. Barbour's
motion for leave to proceed informapauperis (Doc. 1), and DISMISSES WITHOUT
PREJUDICE Mr. Barbour's complaint. If Mr. Barbour pays the required $350 filing fee
within thirty (30) days of the date of this order, his complaint shall be reinstated.
SO ORDERED.
Dated at Rutland, in the District of Vermont, this

1'1"­ of August, 2012.
day

Chn . a Reiss, Chief Judge

United States District Court

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