United States District Court, D. South Carolina
James L. Roudabush, Jr., #82038-083, Petitioner,
B.M. Antonelli, Warden, FCI Williamsburg, Respondent.
Honorable Bruce Howe Hendricks United States District Judge
matter is before the Court upon Petitioner James L.
Roudahush, Jr.'s (“Roudabush”) petition
seeking a writ of prohibition/writ of mandamus under 28
U.S.C. § 1651(a). In accordance with 28 U.S.C. §
636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d) (D.S.C.),
the matter was referred to a United States Magistrate Judge
for preliminary determinations. On January 19, 2018,
Magistrate Judge Jacquelyn D. Austin issued a report and
recommendation (“Report”) outlining
Petitioner's claims and recommending that
Petitioner's motion to proceed in forma pauperis be
denied and that Petitioner be given 21 days to pay the $400
filing fee. According to the Magistrate Judge, in light of
Petitioner's three strikes, and because Petitioner's
claims do not satisfy the three strikes rule's standard
of “imminent danger of serious physical injury, ”
28 U.S.C. § 1915(g), Petitioner cannot proceed with this
action in forma pauperis and must instead pay the full filing
to the Report was a notice advising Petitiner of his right to
file specific, written objections to the Report within 14
days of receiving a copy. On February 1, 2018, Petitioner
filed objections to the Magistrate Judge's Report,
objecting to the Magistrate Judge's finding that
Petitioner has three prior strikes.
Magistrate Judge makes only a recommendation to the Court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261 (1976). The
Court is charged with making a de novo determination only of
those portions of the Report to which specific objections are
made, and the Court may accept, reject, or modify, in whole
or in part, the recommendation of the Magistrate Judge, or
recommit the matter to the Magistrate Judge with
instructions. 28 U.S.C. § 636(b)(1).
Report, the Magistrate Judge noted that Petitioner has filed
more than 100 cases in various courts over the years, and she
specifically considered whether Petitioner has “three
strikes” under 28 U.S.C. § 1915(g), in accordance
with the standard set forth by the Fourth Circuit Court of
Appeals in McLean v. United States, 566 F.3d 391,
393 (4th Cir. 2009). Ultimately, the Magistrate Judge found
that the following dismissals counted as three strikes for
1. Roudabush v. Hylton, No. 2:15-cv-376, ECF No. 9
(E.D. Va. Sept. 2, 2015), affirmed, 635 Fed. App'x 114
(4th Cir. 2016) (counting as a strike because case was
dismissed for failure to state a claim pursuant to 28 U.S.C.
2. Roudabush v. Kopelove, No. 2:05-cv-348, ECF No. 3
(E.D. Va.June 9, 2005), appeal dismissed, No. 05-6945 (4th
Cir. Sept. 12, 2005) (counting as a strike because case
dismissed as frivolous);
3. Roudabush v. Johnson, No. 7:05-cv-691, ECF No.
29, 2006 WL 270020 (W.D. Va. Feb. 3, 2006) (“Johnson
I”) (counting as a strike because complaint dismissed
as frivolous, malicious, or failing to state a claim for
relief pursuant to 28 U.S.C. § 1915A(b)(1)).
(See ECF No. 6 at 8.)
objections, Petitioner asserts that Roudabush v.
Kopelove, No. 2:05-348, should not count as a strike
against him because the only information presented by the
government as evidence of this strike is a docket sheet. The
Court finds this objection without merit; as the Third
Circuit noted in Roudabush v. Bitener, courts often
rely on dockets in older cases, and the docket in
Kopelove is unambiguous insofar as the case was
dismissed as frivolous. See __ F. App'x __, 2018
WL 416819 (3d Cir. 2018).
next points out that the Third Circuit in Bitener
ultimately was unable to determine that Petitioner had three
strikes. The Court also finds this argument unavailing. In
Bitener, the Third Circuit concluded that the
dismissal of Roudabush v. Johnson was a strike but
that the dismissal in Roudabush v. Hylton (relied on
by the Magistrate Judge in this case) was not a strike
because it did not occur prior to the filing of the
underlying action in Bitener. See Bitener, 2018 WL
416819, *2-*3. Here, in contrast to Bitener, the
dismissal in Hylton did occur prior to
Petitioner's filing of this action. Accordingly, the
Court agrees with the Magistrate Judge that both
Johnson and Hylton qualify as strikes, and
the Court finds Petitioner's objections without merit.
review, the Court agrees with the Magistrate Judge's
finding that Plaintiff has three strikes under §
1915(g). Moreover, because Petitioner's claims do not
satisfy the standard of “imminent danger of serious
physical injury” under § 1915(g) and because
Plaintiff has not paid the filing fee, this action is subject
to dismissal without prejudice. The Court hereby adopts and
incorporates the Magistrate ...