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Blakely v. S.C. Department of Corrections and Employees

United States District Court, D. South Carolina

November 2, 2017

James G. Blakely, Plaintiff,
S.C. Department of Corrections and Employees; B. Stirling; Dennis Bush; Mr. G. aka Nurse G, HCA, and Nurse Cooke, Defendants.



         This case is before the court on a pro se Complaint filed by a prison inmate. Pursuant to 28 U.S.C. § 636(b)(1), and Local Civil Rule 73.02(B)(2)(e) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the district court. See 28 U.S.C. §§ 1915(e); 1915A (as soon as possible after docketing, district courts should review prisoner cases to determine whether they are subject to summary dismissal).

         I. Factual Background

         James G. Blakely (“Plaintiff”) is incarcerated at the Broad River Correctional Institution, part of the South Carolina Department of Corrections (“SCDC”). He filed this civil rights Complaint on September 28, 2017, ECF No. 1-1, [1] alleging that he has been denied requested medical testing for cancer and that two previously scheduled appointments with a heart specialist have been cancelled. Compl. 4-6, ECF No. 1. Plaintiff asks this court to declare that Defendants' actions violate the United States Constitution and to order SCDC's medical providers to “examine plaintiff for cancer.” Id. at 8. Plaintiff also filed a Motion for Leave to Proceed in forma pauperis. ECF No. 2.

         II. Standard of Review

         Under established local procedure in this judicial district, a careful review has been made of Plaintiff's pro se Complaint filed in this case. This review has been conducted pursuant to the procedural provisions of 28 U.S.C. §§ 1915, 1915A, and the Prison Litigation Reform Act of 1996, and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Boyce v. Alizaduh, 595 F.2d 948 (4th Cir. 1979).

         Pro se complaints are held to a less stringent standard than those drafted by attorneys, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), and a federal district court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). When a federal court is evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. De'Lonta v. Angelone, 330 F.3d 630, 630 n.1 (4th Cir. 2003). Nevertheless, the requirement of liberal construction does not mean that this court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).

         III. Discussion

         Plaintiff's Motion for Leave to Proceed in forma pauperis should be denied because Plaintiff is struck out under the three-strikes rule of the Prison Litigation Reform Act of 1996. 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 judgement 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 its 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, Plaintiff should be aware that 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 in which the full filing fee is paid at the time of filing. See Green v. Young, 454 F.3d 405, 407 (4th Cir. 2006).

         Review of this court's records discloses that this is the 38th non-habeas civil action that Plaintiff has filed in this court since July 1995. In addition, Plaintiff filed an additional nine cases in state court that were then removed to this court by defendants, making the total number of non-habeas civil cases brought by Plaintiff that have been considered by this court to 47. Four years ago, the Fourth Circuit Court of Appeals determined that Plaintiff has had more than three of these civil actions dismissed as “frivolous, ” rendering those dismissals “strikes” under 28 U.S.C. § 1915(g) and finding Plaintiff to have been “struck out” under the PLRA. Blakely v. Wards, 738 F.3d 607, 617 (4th Cir. 2013) (en banc) (referring to “four summary judgment dismissals, ” but not citing the specific case numbers for those dismissals).[2] Despite the Fourth Circuit's failure to include the specific case numbers for the “four summary judgment dismissals” that it found to be valid strikes, it is clear from its opinion that Plaintiff has been struck out since at least 2000 and his ability to proceed in forma pauperis has not been restored.

         In light of Plaintiff's prior strikes, he cannot proceed with the instant Complaint in forma pauperis unless his allegations are for “imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). See McLean v. United States,566 F.3d 391, 397 (4th Cir. 2009). Plaintiff's allegations do not show that he is in imminent danger of serious physical injury from the alleged refusal of SCDC medical personnel to test him for cancer. Plaintiff does not allege any specific cancer symptoms and only asserts vaguely that he experiences pain in several parts of his body. At most, Plaintiff's allegations show a fear of cancer, which is too speculative to show that he is in “imminent danger of serious physical injury.” See O'Connor v. Suwanee Corr. Inst., 649 F. App'x 802, 805 (11th Cir. 2016) (fear of potential for cancer was too speculative to show imminent threat of serious physical injury). Regarding Plaintiff's desire to be examined by a heart specialist, Plaintiff does not allege that he is currently experiencing symptoms from his alleged heart disease so no imminent danger of serious physical injury is shown. Further, Plaintiff's allegations show only disagreement among him and SCDC medical providers as to the amount and type of medical care he is receiving. Such disagreement does not establish a plausible constitutional claim relating to medical care. See, e.g., Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014) (disagreement with amount and type of medical care does not show a plausible constitutional claim) (same); Jackson v. Fair,846 F.2d 811, 817-18 (1st Cir. 1988); Harrison v. Ross, ...

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