United States District Court, D. South Carolina
Kenneth Syncere Rivera, #318979, a/k/a Kenneth D. Rivera, a/k/a Kenneth Rivera, Plaintiff,
Bryan P. Stirling, South Carolina Department of Corrections, Defendants.
REPORT AND RECOMMENDATION
a state prisoner proceeding pro se, brings this civil action
pursuant to 42 U.S.C. § 1983 against Defendants. He
files this action requesting leave to proceed in forma
pauperis under 28 U.S.C. § 1915. Pursuant to 28 U.S.C.
§ 636(b)(1), and Local Civil Rule 73.02(B)(2)(e)
(D.S.C.), the United States 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). Upon careful review of the record,
including a review of Plaintiff's litigation history, the
undersigned recommends that Plaintiff's motion for leave
to proceed in forma pauperis be denied and that the Complaint
be dismissed unless Plaintiff timely pays the full filing
is an inmate in the custody of the South Carolina Department
of Corrections (“SCDC”) and is presently
incarcerated at the Broad River Correctional Institution, in
Columbia, South Carolina. Plaintiff commenced this civil
rights action by filing a complaint pursuant to 42 U.S.C.
§ 1983, which was entered on August 17, 2018, making
various allegations concerning the conditions of his
confinement. [Doc. 1.] Plaintiff seeks monetary relief.
[Id. at 5.]
is subject to the “three strikes” rule of the
Prison Litigation Reform Act (“PLRA”) of 1996.
The three strikes rule, codified at 28 U.S.C. § 1915(g)
In no event shall a prisoner bring a civil action or appeal a
judgment 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 is 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). The PLRA's three
strikes rule operates 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 must 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
Court takes judicial notice of the Order filed in Rivera
v. Stirling, No. 8:16-cv-481-JMC, Doc. 14 (D.S.C. Aug.
9, 2016). In that Order, the Court noted that Plaintiff had
filed at least twenty cases in federal court over the
preceeding four years and found that Plaintiff had
accumulated at least three strikes pursuant to 28 U.S.C.
§ 1915(g). Id.; see also Colonial Penn Ins.
Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989)
(“We note that ‘the most frequent use of judicial
notice is in noticing the content of court
records.'”). As such, the three strikes rule of the
PLRA applies to Plaintiff.
light of his prior strikes, Plaintiff cannot proceed with the
instant Complaint unless his claim satisfies the exception
for imminent danger of serious physical injury provided by
the three strikes rule. See 28 U.S.C. §
1915(g); Torres v. O'Quinn, 612 F.3d 237, 246
(4th Cir. 2010). Upon review of the Complaint,
Plaintiff's claims in this action do not satisfy the
§ 1915(g) exception to proceed in forma pauperis because
Plaintiff does allege that he is in imminent danger of
serious physical injury.[*]
in order for Plaintiff to proceed with this Complaint,
Plaintiff must pay the full filing fee. Effective May 1,
2013, the Judicial Conference of the United States raised the
filing fee for a civil case. The filing fee (set by the
Congress and the Judicial Conference of the United States)
for a non-habeas civil action is now four hundred dollars
($400). If Plaintiff timely pays the filing fee, the
Complaint will then be subject to review by the undersigned
to determine if service of process should be
recommended that Plaintiff's motion for leave to proceed
in forma pauperis [Doc. 7] be DENIED. It is
further recommended that Plaintiff be given twenty-one (21)
days from the date the United States District Judge rules on
this Report and Recommendation to pay the filing fee of four
hundred dollars ($400), and that the Office of the Clerk of
Court withhold entry of judgment until such time expires. If
Plaintiff fails to pay the filing fee within the specified
time period, it is further recommended that the District
Court enter an order dismissing the Complaint without
prejudice under the three strikes rule of 28 U.S.C. §
1915(g), and that the Clerk enter the required final judgment
at the close of the 21-day period permitted for payment of
the filing fee. Plaintiff's attention is directed
to the important notice on the next page.
of Right to File Objections to Report ...