United States District Court, D. South Carolina, Anderson/Greenwood Division
Kenneth Syncere Rivera, a/k/a Kenneth D. Rivera, a/k/a Kenneth Rivera, Plaintiff
Bryan P. Stirling, Director; Elbert Pearson, S.I.U; Lieutenant Skipper, Contraband; Mr. McFadden, Warden; Ms. Ravenell, I.C.C.; Michael R. Matthews, Defendants.
Kenneth Rivera (“Plaintiff”) proceeding pro
se and in forma pauperis, filed this civil
rights action pursuant to 42 U.S.C. § 1983 alleging that
his rights under the First and Fourteenth Amendments have
been violated by Defendants who allegedly placed him in a
segregated unit without a disciplinary infraction on part of
Plaintiff. (ECF No. 1.) Plaintiff further alleges that
Defendants held hearings regarding his classification without
him being present, and that he filed administrative
complaints regarding these hearings that went unprocessed.
(ECF No. 1.) This matter is now before the court on
Defendants’ Motion to Dismiss. (ECF No. 25.) Plaintiff
also filed motions to strike Defendants’ motion to
dismiss (ECF No. 29), to strike Defendants’ reply in
support of their motion to dismiss (ECF No. 41), to appoint
counsel (ECF No. 54), and for an extension of time to respond
to the Report and Recommendation (ECF No. 57).
accordance with 28 U.S.C. § 636(b) and Local Rule 73.02,
the matter was referred to United States Magistrate Judge
Jacquelyn Austin, for pre-trial handling. On June 27, 2016,
the Magistrate Judge issued a Report and Recommendation
(“Report”) recommending the court consider
documents presented outside of the pleadings thereby
converting Defendants’ motion into a motion for summary
judgment. The Magistrate Judge further recommended that this
court grant Defendants’ motion and deny Plaintiffs
outstanding motions as moot. (ECF No. 55.) Subsequently,
Plaintiff filed timely Objections to the
Report. (ECF No. 59.) For the reasons stated
herein, the court ACCEPTS the Report insofar as the
Magistrate Judge recommends that Plaintiff’s complaint
should be dismissed, but the court departs from the reasoning
of the Magistrate Judge as to the grounds on which the
complaint is to be dismissed. The Magistrate Judge determined
that Plaintiff’s complaint should be dismissed, and
summary judgment granted in favor of Defendants, because
Plaintiff failed to exhaust his administrative remedies as
required by the Prison Litigation Reform Act, 42 U.S.C.
§ 1997e, as a prerequisite for a civil rights action.
However, this court finds that Plaintiff’s complaint is
subject to dismissal pursuant to 28 U.S.C. § 1915(g).
the preceding four years, Plaintiff has filed at least twenty
cases in federal court. The vast majority of these cases have
resulted in either dismissal of Plaintiff’s complaint
or a grant of summary judgment in favor of the defendants.
Pursuant to 28 U.S.C. § 1915(g), if a “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 grounds that
it is frivolous, malicious, or fails to state a claim upon
which relief may be granted,” the prisoner is unable to
proceed under section 1915 unless “under imminent
danger of serious physical injury.” 28 U.S.C. §
1915(g). In order for a case to be properly designated as a
strike, it must be dismissed in its entirety on grounds that
it is frivolous, malicious, or fails to state a claim upon
which relief may be granted. Tolbert v. Stevenson,
635 F.3d 646 (4th Cir. 2011)
15, 2016, this court entered an order in Kenneth Rivera
v. Scott Bodiford, Civil Action No. 8:15-3272 (D.S.C.
filed August 18, 2015) dismissing Plaintiff’s civil
rights action for failure to state a claim upon which relief
could be granted. (8:15-3272; ECF No. 15.) The court also
designated a strike pursuant to 28 U.S.C. § 1915(g).
(Id.) On June 20, 2016, this court entered an order
in Kenneth Rivera v. Bryan Stirling, Civil Action
No. 8:15-2135 (D.S.C. filed May 29, 2015) dismissing
Plaintiff’s civil rights action for failure to state a
claim upon which relief can be granted. (8:15-2135; ECF No.
16.) The court also designated a strike pursuant to 28 U.S.C.
§ 1915(g). (Id.) Finally, on June 30, 2016,
this court entered an order in Kenneth Rivera v. Bryan
Stirling, Civil Action No. 8:15-2995 (D.S.C. filed July
31, 2015) dismissing Plaintiff’s civil rights action
for failure to state a claim upon which relief can be
granted. (8:15-2995; ECF No. 15.) The court designated the
filing in that case a strike pursuant to 28 U.S.C. §
1915(g) as well. (Id.)
date, Plaintiff has accumulated at least three strikes
pursuant to section 1915(g). Plaintiff does not allege, nor
does it appear to this court based on Plaintiff’s
complaint, that Plaintiff is under imminent danger of serious
physical injury. Accordingly, Plaintiff is unable to proceed
in forma pauperis with this claim in this court.
Although prisoners have a constitutional right of access to
the courts, that right is not without limits. Blakely v.
Wards, 738 F.3d 607, 624 (4th Cir. 2013) (Motz, J.,
dissenting). “The three-strikes rule imposes a notable
limit on a prisoner’s ability to proceed in forma
pauperis (“IFP”). Id. Thus,
Plaintiff’s complaint must be dismissed without
prejudice to his right to re-file this action subject to the
payment of the necessary filing fee.
foregoing reasons, this court ACCEPTS, but for differing
reasons, the Report and Recommendation of the Magistrate
Judge (ECF No. 55) insofar as the Magistrate Judge recommends
that Plaintiffs complaint be dismissed. Defendants’
Motion to Dismiss (ECF No. 25) is DENIED as moot.
Plaintiff’s motions (ECF Nos. 29, 41, 54, 57) are also
DENIED as moot. Plaintiff’s complaint (ECF No. 1) is
DISMISSED without prejudice pursuant to 28 U.S.C. §
 Although Plaintiffs Objections were
not received by the court until after the deadline, Plaintiff
submitted his Objections to the mail room at McCormick
Correctional Institute on July 12, 2016. (ECF No. 60-2.)
Thus, pursuant to Houston v. Lack,487 ...