United States District Court, D. South Carolina, Charleston Division
Kelvin J. Miles a/k/a Kelvin, Jerome Miles, Plaintiff,
Commender J. Glen, et al., Defendants.
REPORT AND RECOMMENDATION
WALLACE W. DIXON, Magistrate Judge.
This action brought pursuant to Bivens v. Six Unknown Federal Narcotics Agents , 403 U.S. 388, 91 S.Ct. 1999 (1971), by Kelvin J. Miles, a federal prisoner proceeding pro se and in forma pauperis is before the undersigned United States Magistrate Judge for pretrial supervision and a Report and Recommendation on the defendants' motion to dismiss under Fed.R.Civ.Pro. 12 (b)(1) filed on September 23, 2013. 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(e)(D.S.C.).
The plaintiff was sentenced May 11, 1981, to an aggregated sentence of 10 to 30 years in the Superior Court of the District of Columbia, for Burglary and Assault with Intent to Commit Rape. He was released to the District of Columbia from the State of Maryland where he was serving a 45 year sentence for rape and kidnaping imposed in 1979 and 1980.
The plaintiff brought this action on or about May 20, 2013, and sought damages and equitable relief. (Dkt. No. 1.) Plaintiff "avers that he has chest pains on and off, leukemia found in his blood at District of Columbia Jail intake may be spreading to other areas of his body." (Dkt. No. 13 at 1 of 5.) He also appears to complain about medical treatment, or lack thereof, after an injury suffered during a fall. (Id.) Plaintiff asks to be moved "to [an] outside hospital... to prevent ongoing harassments and threats against his life...." (Id. at 1-2 of 5.) Plaintiff "avers that if he is not treated and monitored at [an] outside medical facility[, ] it would be irreparable injury." (Id. at 2.) In addition to treatment at an "outside medical facility, " Plaintiff seeks an order restraining Richard Lanham of the United States Marshals Service, who is not a defendant here, from threatening and harassing him. (Id.)
On February 19, 2014, the Honorable R. Bryan Harwell, United States District Judge, dismissed Plaintiff's Motion for Preliminary Injunction and Motion for Temporary Restraining Order (Dkt. No. 13) since Plaintiff was no longer incarcerated at FCI-Estill. He was transferred to the Federal Medical Center in Rochester, Minnesota, and, as such, his claims for injunctive relief against the defendants in this case were now moot.
A review of the record and relevant case law reveals that this matter may be subject to dismissal on various grounds; however, Plaintiff has accumulated well over three § 1915(e) dismissals of his prior prison civil actions, so that his Complaint is subject to dismissal pursuant to this Court's authority under the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915.
In relevant part, the PLRA states:
28 U.S.C. § 1915(e)(2)
Notwithstanding any filing fee, or any portion thereof that may have been paid, the court shall dismiss the case at any time if the court determines that -
(A) the allegation of poverty is untrue; or
(B) the action or appeal -
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune ...