United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
MARY GORDON BAKER, Magistrate Judge.
Plaintiff Antrell Jermaine Fordham is a state prisoner incarcerated at Lieber Correctional Institution in South Carolina. Plaintiff is proceeding pro se and in forma pauperis. Pursuant to the provisions of 28 U.S.C. § 636(b)(1), and Local Rule 73.02(B)(2), the Magistrate Judge is authorized to review the record and to submit findings and recommendations to the District Judge. Upon review, the Magistrate Judge recommends that the Complaint is frivolous and should be summarily dismissed, with prejudice, and without issuance and service of process, for the following reasons:
I. Background and Factual Allegations
Plaintiff is presently serving state sentences for multiple counts of bank robbery and escape. His projected release date is January 13, 2023. Plaintiff is suing several prison officials (in both their individual and official capacities) for monetary damages because he is displeased with the decision in his prison disciplinary case for public masturbation, exhibitionism, and solicitation. Plaintiff asserts claims under 42 U.S.C. § 1983, claiming that his due process rights were violated by the disciplinary proceedings and his resulting placement in administrative segregation for 78 days. (DE# 1 at 3-4, ¶ IV "Statement of Claim"). Plaintiff seeks monetary relief from the Defendants and a declaration that his rights were violated. ( Id. at 5, ¶ V "Relief").
II. Relevant Law
A. Standard of Review
Under established local procedure in this judicial district, the Magistrate Judge has carefully reviewed this pro se prisoner complaint pursuant to 28 U.S.C. § 1915 and in light of the following precedents: Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Estelle v. Gamble, 429 U.S. 97 (1976); Haines v. Kerner, 404 U.S. 519 (1972); and Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978).
The Prison Litigation Reform Act ("PLRA") permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. 28 U.S.C. § 1915(a)(1). To protect against possible abuses of this privilege, the statute allows the court to dismiss the case upon finding that the action is "frivolous or malicious, " "fails to state a claim on which relief may be granted, " or "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). A finding of frivolity can be made where the complaint lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992). Under 28 U.S.C. § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte "at any time." Neitzke, 490 U.S. at 326. "Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law." Id.
With respect to a failure to state a claim, "Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law." Neitzke, 490 U.S. at 326. The "complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id. "Unless otherwise specified, a dismissal for failure to state a claim under Rule 12(b)(6) is presumed to be both a judgment on the merits and to be rendered with prejudice." McLean v. United States, 566 F.3d 391, 396 (4th Cir. 2009).
Pro se pleadings are given liberal construction and are held to a less stringent standard than formal pleadings drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007); De'Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir.2003). However, "[t]he special judicial solicitude' with which a district court should view... pro se filings does not transform the court into an advocate. United States v. Wilson, 699 F.3d 789, 797 (4th Cir.2012), cert. denied, 133 S.Ct. 2401 (2013). Only those questions which are squarely presented to a court may properly be addressed." Weller v. Dept. of Soc. Servs., City of Baltimore., 901 F.2d 387, 391 (4th Cir.1990). Giving "liberal construction" does not mean that the Court can ignore a prisoner's clear failure to allege facts that set forth a cognizable claim. "Principles requiring generous construction of pro se complaints... [do] not require... courts to conjure up questions never squarely presented to them." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir.1985), cert. denied, 475 U.S. 1088 (1986).
B. The PLRA's 3-strike provision
The PLRA, at 28 U.S.C. § 1915(g) provides that:
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.
McLean, 566 F.3d at 404. "[I]f a prisoner has already had three cases dismissed as frivolous, malicious, or for failure to state a claim for which relief may be granted, the prisoner generally may not proceed IFP but rather must pay up-front all filing fees for his subsequent suits." Blakely v. Wards, 738 F.3d 607, 609 (4th Cir.2013), as amended (Oct. 22, 2013). This means that, after receiving three strikes, plaintiff will have ...