United States District Court, D. South Carolina
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.
REPORT AND RECOMMENDATION
KAYMANI D. WEST FLORENCE, SOUTH CAROLINA UNITED STATES
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).
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,  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.
Standard of Review
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).
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).
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. §
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.
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). 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
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, ...