United States District Court, D. South Carolina
June 18, 2014
Paul Leslie Cox, #75206, Plaintiff,
Solicitor Barry Barnette, Defendant.
REPORT AND RECOMMENDATION
JACQUELYN D. AUSTIN, Magistrate Judge.
Paul Leslie Cox ("Plaintiff"), proceeding pro se, brings this civil action pursuant to 42 U.S.C. § 1983. Plaintiff is currently incarcerated at the McCormick Correctional Institution, and he files this action requesting to proceed in forma pauperis under 28 U.S.C. § 1915. The motion to proceed in forma pauperis should be denied, and the Complaint should be dismissed unless Plaintiff timely pays the full filing fee.
Plaintiff alleges he was convicted of kidnaping and sentenced to life imprisonment on April 16, 1987, and someone "set [him] up." [Doc. 1 at 4-5.] He alleges that rape charges were pending in Spartanburg, S.C., against someone, but those charges were dismissed on May 27, 1987. [ Id. at 5.] Plaintiff requests this Court to reinstate the rape charges so that he can help put the person in prison who committed the crime. [ Id. at 3-5.] He names the current Solicitor of Spartanburg County, S.C., as the defendant. [ Id. at 1-2.] Further, Plaintiff alleges that the three strikes law should not be applied to this action because it "cannot be applied retroactive... the expo facto clause, equal protection clause, and due process clause, was implemented to protect all United States citizens..." [ Id. at 3.]
Plaintiff is subject to the "three strikes" rule of the Prison Litigation Reform Act, 28 U.S.C. § 1915(g). The "three strikes" rule, codified at 28 U.S.C. § 1915(g), provides:
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). This "three strikes" rule was enacted to bar prisoners, such as Plaintiff, who have filed prior frivolous litigation in a federal court from pursuing certain types of federal civil litigation without prepayment of the filing fee. To avoid application of 28 U.S.C. § 1915(g), a prisoner may prepay the filing fee in full. However, all civil lawsuits brought by prisoners seeking relief from a governmental entity, officer, or employee are subject to screening pursuant to 28 U.S.C. § 1915A, even those lawsuits where the full filing fee is paid at the time of filing. See Green v. Young, 454 F.3d 405, 407 (4th Cir. 2006). Notably, in his prior lawsuit, Plaintiff previously challenged the "three strikes" rule as unconstitutional, and this Court explained that the law has been determined to be constitutional. See Report and Recommendation, Cox v. United States, C/A No. 8:14-335-TMC (D.S.C. Feb. 26, 2014), ECF No. 15.
This Court may take judicial notice of the three (3) civil actions filed by Plaintiff in which a "strike" has been entered. See Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) ("We note that the most frequent use of judicial notice is in noticing the content of court records.'"). Plaintiff has filed three prior cases in this Court, which have been dismissed with prejudice, as frivolous, and deemed "strikes" under § 1915(g). See Cox v. U.S. Att'y Gen., et al., Civil Action No. 3:12-591-TMC, 2012 WL 1570093, at *1 (D.S.C. May 3, 2012); Cox v. S.C. Dep't of Corr. Dir. Jon E. Ozmint, et al., Civil Action No. 3:12-225-TMC, 2012 WL 1415149, at *1 (D.S.C. Apr. 24, 2012); and Cox v. United States, Civil Action No. 3:12-50-TMC, 2012 WL 1158861, at *1 (D.S.C. Apr. 9, 2012). In light of these "strikes" imposed in 2012, Plaintiff cannot proceed with the instant Complaint unless his claim satisfies the exception for imminent physical harm provided by the "three strikes" rule. See 28 U.S.C. § 1915(g); and Torres v. O'Quinn, 612 F.3d 237, 246 (4th Cir. 2010).
The Complaint in the above-captioned case does not fit within the exception to proceed in forma pauperis as Plaintiff does not allege that he is in imminent danger of serious physical injury. Therefore, to proceed with this Complaint, Plaintiff must pay the full filing fee. Effective May 1, 2013, the Judicial Conference of the United States raised the filing fee for a civil case. The filing fee (set by the Congress and the Judicial Conference of the United States) for a non-habeas civil action is now four hundred dollars ($400). As a result, Plaintiff must pay the full filing fee of four hundred dollars ($400). If Plaintiff timely pays the filing fee, his Complaint will then be subject to review by the undersigned to determine if service of process should be authorized.
It is recommended that Plaintiff's motion to proceed in forma pauperis [Doc. 2] be DENIED. It is further recommended that Plaintiff be given twenty-one (21) days from the date the United States District Judge rules on this Report and Recommendation to pay the filing fee of four hundred dollars ($400) and that the Clerk of Court withhold entry of judgment until such time for payment expires. If Plaintiff fails to pay the filing fee within the specified time period, it is further recommended that the Complaint be dismissed without prejudice under the "three strikes" rule of 28 U.S.C. § 1915(g), and that the Clerk of Court enter the required final judgment at the close of the twenty-one-day period permitted for payment of the filing fee.