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Rivera v. Stirling

United States District Court, D. South Carolina, Anderson/Greenwood Division

June 19, 2018

Kenneth Rivera, Plaintiff,
v.
Bryan P. Stirling, Director; Mrs. Trulls, Nurse; Karal Berry, Health Services; Mr. Stephon, Warden; Mrs. Tracy James, Nurse, Defendants.

          ORDER AND OPINION

         Kenneth Rivera (“Plaintiff”), proceeding pro se, brings this civil action pursuant to 42 U.S.C. § 1983. Plaintiff is currently incarcerated at the McCormick Correctional Institution, and he files this action requesting to proceed in forma pauperis under 28 U.S.C. § 1915. This matter is before the court for review of the Magistrate Judge's Report and Recommendation (“Report”) (ECF No. 7), filed October 30, 2017, recommending that Plaintiff's Motion to Proceed in forma pauperis (ECF No. 2) against Defendants Bryan P. Stirling, Mrs. Trulls, Karal Berry, Mr. Stephon, and Mrs. Tracy James (collectively “Defendants”) be granted only to the extent that Plaintiff is permitted to proceed on his § 1983 claim related to deliberate indifference to his repeated migraine headaches and the denial of his migraine medicine, and that the remaining claims should be dismissed without prejudice unless Plaintiff timely pays the full filing fee.

         For the reasons stated herein, the court ACCEPTS the findings of the Report. Therefore, the court GRANTS Plaintiff's Motion to Proceed in forma pauperis (ECF No. 2) to the extent that Plaintiff is permitted to proceed on his § 1983 claim related to deliberate indifference to his repeated migraine headaches and the denial of his migraine medicine, and the court will DISMISS the remaining claims without prejudice unless Plaintiff timely pays the full filing fee.

         I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

         Plaintiff alleges that during April to May of 2017, Plaintiff had repeated migraine headaches, and South Carolina Department of Corrections' (“SCDC”) medical personnel only gave him two of his pills despite Plaintiff being prescribed nine pills per month. (ECF No. 7 at 1.) Plaintiff went to the pill line window and asked for migraine medication, but Nurse Trulls refused his request stating that officers have to call the nurse in order for Plaintiff to receive his medication. (ECF No. 1 at 3.) Plaintiff further alleges this refusal violated policy because the pill line was open. (Id.) Furthermore, Plaintiff alleges he believes that his constant migraines are “due to chronic insomnia or traumatic brain injury.” (ECF No. 7 at 2.) He has requested that Defendants permit him to be examined for traumatic brain injury and treated for insomnia; they have refused because “SCDC does not treat insomnia, ” and they do not believe he needs to be examined for traumatic brain injury. (Id.) Plaintiff filed timely Objections on September 18, 2017. (ECF No. 9.)

         II. LEGAL STANDARD

         The Magistrate Judge's Report was made in accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge makes only a recommendation to this court, and the recommendation has no presumptive weight-the responsibility to make a final determination remains with this court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objections are made, and the court may accept, reject, or modify, in whole or in part, the Magistrate Judge's recommendation or recommit the matter with instruction 28 U.S.C. § 636(b)(1).

         III. ANALYSIS

         Plaintiff filed this action requesting to proceed in forma pauperis seeking damages and injunctive relief for not receiving medical treatment and his migraine medication. (ECF Nos. 1, 2.) The Magistrate Judge recommends that Plaintiff's Motion to Proceed in forma pauperis be granted only to the extent that Plaintiff is permitted to proceed on his § 1983 claim related to deliberate indifference to his repeated migraine headaches and the denial of his migraine medicine, and that the remaining claims should be dismissed without prejudice unless Plaintiff timely pays the full filling fee. (ECF No. 7.)

         1. 28 U.S.C. § 1915(g) - Proceeding in forma pauperis: “Three Strike” Rule

         Plaintiff objects to the Report and alleges that pending actions were used to reach his “three strike” limit which resulted in the required payment of the full filing fee for the part of his action not allowed to proceed under 28 U.S.C. § 1915(g). (ECF No. 9.)

         Pursuant to 28 U.S.C. § 1915(g), if a “prisoner has, on three 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 was frivolous, malicious, or fails to state a claim upon which relief can 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). This “three strike” 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, all civil law suits 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 where the full filing fee is paid at the time of filing. See Green v. Young, 454 F.3d 405, 407 (4th Cir. 2006).

         To date, Plaintiff has accumulated at least three strikes pursuant to section 1915(g).[1]Accordingly, Plaintiff is unable to proceed in forma pauperis with part of his claim in this court because part of the claim does not sufficiently allege imminent danger of serious physical injury.

         2. 28 U.S.C. § 1915(g) - Proceeding in forma pauperis: Imminent Danger Exception

         Plaintiff objects to the Report and alleges he “suffers from ‘Traumatic Brain Injury' in which his migraines derive from.” (ECF No. 9.) Plaintiff believes that by SCDC refusing to examine him for Traumatic Brain Injury and not treating his self-diagnosed ...


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