Blake v. Hart
Filing
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MEMORANDUM OPINION AND ORDER adopting the 15 Proposed Findings and Recommendation, dismissing the complaint, and dismissing this case from the Court's docket. Signed by Judge Thomas E. Johnston on 6/3/2011. (cc: plaintiff; attys; any unrepresented party) (taq)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
ROBERT BLAKE,
Plaintiff,
v.
CIVIL ACTION NO. 2:10-cv-01124
TRUSTEE CLERK ABBIE HART
Defendant;
_________________________________
ROBERT JOSEPH BLAKE,
Plaintiff,
v.
CIVIL ACTION NO. 2:10-cv-01242
MARY ANN KENDRECK, et al.
Defendants;
__________________________________
ROBERT BLAKE,
Plaintiff,
v.
CIVIL ACTION NO. 2:10-cv-01320
LISA R. FRYE, et al.
Defendants;
__________________________________
ROBERT BLAKE,
Plaintiff,
v.
CIVIL ACTION NO. 2:10-cv-01321
WARDEN DAVID BALLARD,
Defendant;
ROBERT BLAKE,
Plaintiff,
v.
CIVIL ACTION NO. 2:10-cv-01322
JESSICA MILLER, et al.
Defendants;
__________________________________
ROBERT BLAKE,
Plaintiff,
v.
CIVIL ACTION NO. 2:10-cv-01323
BE MORE, et al.
Defendants;
__________________________________
ROBERT BLAKE,
Plaintiff,
v.
CIVIL ACTION NO. 2:10-cv-01324
ABBIE HART, et al.
Defendants;
__________________________________
ROBERT BLAKE,
Plaintiff,
v.
CIVIL ACTION NO. 2:10-cv-01325
CO DAVID TONY, et al.
Defendants;
2
ROBERT BLAKE,
Plaintiff,
v.
CIVIL ACTION NO. 2:10-cv-01331
VALORIE ADKINS, et al.
Defendants;
__________________________________
ROBERT BLAKE,
Plaintiff,
v.
CIVIL ACTION NO. 2:10-cv-01353
MATAINENTE, et al.
Defendants;
__________________________________
ROBERT BLAKE,
Plaintiff,
v.
CIVIL ACTION NO. 2:11-cv-00030
COUNSELOR JOEY ELLIOTT, et al.
Defendants;
__________________________________
ROBERT BLAKE,
Plaintiff,
v.
CIVIL ACTION NO. 2:11-cv-00031
CO BRADE, et al.
Defendants;
3
ROBERT BLAKE,
Plaintiff,
v.
CIVIL ACTION NO. 2:11-cv-00147
NILE COOPER, et al.
Defendants;
__________________________________
ROBERT BLAKE,
Plaintiff,
v.
CIVIL ACTION NO. 2:11-cv-00136
KEEFE COMMISSARY,
Defendant.
__________________________________
MEMORANDUM OPINION AND ORDER
By standing order entered August 1, 2006, and filed in the above-styled cases, these actions
were referred to United States Magistrate Judge Mary E. Stanley for submission of proposed
findings recommendations (PF&Rs). Magistrate Judge Stanley entered a single PF&R on April 26,
2011, recommending that this Court dismiss all of the above-styled cases for failure to pay the filing
fee within thirty days as instructed by the magistrate judge. For the reasons contained in this opinion
and order, the Court ADOPTS the PF&R in each of the above-styled cases; DISMISSES all
complaints in the cases; and DISMISSES the cases from the docket.
I. BACKGROUND
Robert Blake is a prisoner at Mount Olive Correctional Complex and the plaintiff in twentythree civil cases filed in this district since late 2009. In each of his twenty-three cases, his
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allegations are similar: his universal remote is broken; his property in Wetzel County, West Virginia,
was sold without his authorization; the prison is removing money from his accounts; he is charged
for items he does not receive; his knee hurts; he was killed multiple times in multiple ways by
several of the defendants; he was castrated by a nurse; a snake was loosed in his cell; a counselor
mashed up his hand; he does not receive his legal mail.
As detailed by the magistrate judge, seven of Mr. Blake’s cases have already been dismissed.
Most important among these cases are Blake v. Miller, No. 2:10-cv-00031, dismissed as legally
frivolous on March 3, 2011; Blake v. Allen, No. 2:10-cv-01089, dismissed for failure to state a claim
on November 3, 2010, by Chief Judge Joseph R. Goodwin; and Blake v. Ballard, No. 2:10-cv-1152,
dismissed as legally frivolous on October 28, 2010, by Chief Judge Goodwin. Together, these three
dismissals amount to “three strikes” under the Prison Litigation Reform Act of 1995 (PLRA). The
sanction for accruing three such dismissals is the loss of the right to proceed without prepayment
of fees and costs. See 28 U.S.C. § 1915(g) (denying IFP status for prisoners who have “on 3 or more
prior occasions, while incarcerated or detained in any facility, brought an action . . . that was
dismissed . . . [as] frivolous, malicious, or fail[ing] to state a claim . . . .”). The sole exception to the
three strikes sanction is for prisoners facing “imminent danger of serious physical injury.” See id.
Magistrate Judge Stanley concluded that Mr. Blake accrued three strikes under the PLRA and failed
to state any facts indicating that he is under imminent danger of serious physical injury.
Accordingly, on March 8, 2011,1 Judge Stanley denied Mr. Blake’s applications to proceed without
prepayment of fees and costs in all of his pending cases, and she instructed Mr. Blake to pay the fees
and costs in full within thirty days or face dismissal. On April 26, 2011, over two weeks after the
1
IFP was denied on March 9, 2011, in Blake v. Cooper, No. 2:11-cv-00147.
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expiration of the thirty-day payment period, Judge Stanley entered a PF&R recommending that the
Court adopt the findings in her March 8, 2011, order and dismiss the above-styled cases with
prejudice for failure to pay the appropriate fees and costs. Objections to Magistrate Judge Stanley’s
PF&R were due on May 13, 2011.
On April 29, 2011, the Clerk of Court for the Southern District of West Virginia received
a letter from Robert Blake, dated April 27 and requesting voluntary dismissal of all cases in which
Judge Stanley denied Mr. Blake IFP status. This request includes all of the above-styled cases. On
May 10, 2011, the Clerk of Court received another letter from Robert Blake, dated May 8, 2011.2
Mr. Blake’s May 8 letter requested that several cases remain open3 despite his April 27 letter, and
asked the Clerk to put a lien on unnamed property in Wetzel County, West Virginia, to pay the filing
fees in his cases. Also on May 10, 2011, the Clerk of Court received a third letter from Robert
Blake, dated May 5, 2011. This third letter is a near duplicate of the May 8 letter, requesting that
the same cases remain open4 and again requesting the Clerk to put a lien on Blake’s undescribed
Wetzel County property.
2
Mr. Blake inexplicably refers to himself as “Jesse L. Blake” in this letter.
3
Of the cases involved in this opinion and order, Mr. Blake requested that the following remain
open: Blake v. Kendrick, No. 2:10-cv-01242; Blake v. Frye, No. 2:10-cv-01320; Blake v. Ballard,
No. 2:10-cv-01321; Blake v. Miller, No. 2:10-cv-01322; Blake v. Hart, No. 2:10-cv-01324; Blake
v. Tony, No. 2:10-cv-01325; Blake v. Matainente, No. 2:10-cv-01353; Blake v. Brade, 2:11-cv00031; Blake v. Keefe Commissary, No. 2:11-cv-00136; Blake v. Cooper, No. 2:11-cv-00147. In
addition, Mr. Blake requested that Blake v. Stanley, No. 2:11-cv-00137, and Blake v. Mt. Olive, No.
2:11-cv-00221, remain open.
4
Blake v. Matainente, No. 2:10-cv-01353, was named in the May 8 letter but not the May 5 letter.
All other cases named in the May 8 letter were also named in the May 5 letter.
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II. DISCUSSION
The Court is not required to review, under a de novo or any other standard, the factual or
legal conclusions of the magistrate judge as to those portions of the findings or recommendation to
which no objections were addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to file
timely objections constitutes a waiver of de novo review and the plaintiff’s right to appeal this
Court’s order. 28 U.S.C. § 636(b)(1); see also Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir.
1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). In addition, this Court need not
conduct a de novo review when a party “makes general and conclusory objections that do not direct
the Court to a specific error in the magistrate’s proposed findings and recommendations.” Orphiano
v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).
Objections to the PF&R in these cases were due on May 13, 2011. Before that time elapsed,
Robert Blake filed three letters with the Clerk, one requesting voluntary dismissal of the abovestyled cases and two seeking to maintain the cases and “put a[n] appeal in on” them. All three letters
followed the magistrate judge’s PF&R, and to the extent they have legal import in these cases, the
letters must be considered objections to the PF&R. Lodging timely and coherent objections to the
PF&R has the effect of a mandatory appeal before the district court. In addition, as the district court
has, as of now, made no dispositive or appealable rulings in this case, no appeal to the Fourth Circuit
may yet be taken. As objections to the PF&R, Mr. Blake’s letters fail to direct the Court to any error
in the magistrate judge’s findings. Nonetheless, this Court undertook an independent review of Mr.
Blake’s cases, and it has concluded that the magistrate judge made no error. Robert Blake has
accrued three strikes under the PLRA, and he has not stated any facts to indicate he is in imminent
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danger of serious physical injury. Therefore, he is ineligible for IFP status in his remaining civil
actions and all future cases and appeals.
Mr. Blake is advised that, although he claims to have property of sufficient value to cover
the filing fees in his cases, he cannot simply request that the Clerk of Court place a lien on the
property. Even if Mr. Blake had described the property with any detail, this Court is not a bank and
its role is not to barter land for outstanding filing fees. In addition, if Mr. Blake wishes to appeal
this order, he is directed to the Federal Rules of Appellate Procedure, and particularly Rules 3, 4,
and 5. Mr. Blake is further instructed that his letters of April 27, May 5, and May 8 will not be
considered timely-filed notices of appeal in any of the above-styled cases, and additional action is
required of him if he intends to appeal this order.
III. CONCLUSION
For the reasons set forth more fully above, the Court ADOPTS the PF&R; DISMISSES the
complaints in the listed cases; and DISMISSES the above-styled cases from the Court’s docket.
A separate Judgment Order will enter this day implementing the rulings contained herein.
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:
June 3, 2011
_________________________________________
THOMAS E. JOHNSTON
UNITED STATES DISTRICT JUDGE
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