Finley v. Rubenstein et al

Filing 6

MEMORANDUM OPINION AND ORDER adopting the 4 Proposed Findings and Recommendation; and directing that this action is dismissed without prejudice. Signed by Judge John T. Copenhaver, Jr. on 9/26/2011. (cc: pro se plaintiff; attys; United States Magistrate Judge) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON

OSCAR L. FINLEY,
Plaintiff,
v.

Civil Action No. 2:11-395

JIM RUBENSTEIN,
Comm. of Corrections, and
DAVID BALLARD, Warden,
Mt. Olive Correctional Complex,
being sued in their individual
and official capacity
Defendants.

MEMORANDUM OPINION AND ORDER

This action was previously referred to Mary E. Stanley,
United States Magistrate Judge, who has submitted her Proposed
Findings and Recommendation (“PF&R”) pursuant to the provisions
of 28 U.S.C. § 636(b)(1)(B).

The court has reviewed the PF&R entered by the
magistrate judge on August 17, 2011.

The magistrate judge

recommends dismissal of plaintiff’s complaint pursuant to 28
U.S.C. § 1915(g), which 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 injury.
28 U.S.C. § 1915(g).

On June 23, 2011, the magistrate judge advised
plaintiff of his obligation to pay the filing fee associated with
this action.

She noted the following predicate actions for

purposes of section 1915(g):
1. Finley v. Painter, Case No. 5:99-cv-00765. Dismissed
with prejudice on June 26, 2000, for failure to state a
claim upon which relief can be granted and for being
malicious (Faber, J.). This is his “first strike.”
2. Finley v. Painter, Case No. 5:00-cv-00209. Dismissed
with prejudice on January 31, 2001, for failure to
state a claim upon which relief can be granted,
frivolous or malicious (Faber, J.). This is his “second
strike.”
3. Finley v. Rubenstein, Case No. 5:03-cv-00066.
Dismissed with prejudice on March 11, 2008, for failure
to state a claim upon which relief can be granted
(Haden, J.). This is his “third strike.”
4. Finley v. Doe, Case No. 5:07-cv-00807. Dismissed
without prejudice on June 30, 2008, for failure to pay
the filing fee in full (Johnston, J.). In a Memorandum
Opinion, Judge Johnston reviewed the plaintiff’s prior
three filings and concluded that he is subject to the
three strikes provision of 28 U.S.C. § 1915(g).
(Mag. Judge. Ord. at 2-3 (stating also “that the plaintiff must
pay the filing fee of $350 in full by July 29, 2011. If he fails
to pay the filing fee, the undersigned will recommend that the
presiding District Judge dismiss this case.”)).
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In her August 17, 2011, PF&R, the magistrate recommends
that the court adopt the foregoing findings, further find that
plaintiff has failed to pay the required filing fee, and dismiss
the case without prejudice.
objected.

On August 29, 2011, plaintiff

The objections are difficult to decipher in places,

but it does not appear that plaintiff is in imminent danger of
serious physical injury.

The objections are thus not

meritorious.

Having reviewed the entirety of the record herein, it
is accordingly ORDERED:
1.

That the PF&R be, and it hereby is, adopted by the
court; and

2.

That this action be, and it hereby is, dismissed
without prejudice.

The Clerk is directed to forward copies of this written
opinion and order to the pro se plaintiff, all counsel of record,
and the United States Magistrate Judge.
DATED: September 26, 2011
John T. Copenhaver, Jr.
United States District Judge

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