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Roudabush v. Inch

United States District Court, D. South Carolina

September 21, 2018

James L. Roudabush, Jr., #82038-083, Plaintiff,
v.
Mark Inch, et al., Defendants.

          REPORT AND RECOMMENDATION

          Jacquelyn D. Austin United States Magistrate Judge.

         James L. Roudabush, Jr. (“Plaintiff”), proceeding pro se, filed the instant action pursuant to Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971), alleging violations of his civil rights. [Docs. 1, 1-3.] Pursuant to 28 U.S.C. § 636(b)(1), and District of South Carolina Local Civil Rule 73.02(B)(2)(e), the undersigned magistrate judge is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the District Court.

         Plaintiff is currently incarcerated at the Edgefield Federal Correctional Institution, and he files this action requesting leave to proceed in forma pauperis under 28 U.S.C. § 1915. [Doc. 8.] However, Plaintiff is subject to the “three strikes” rule and, for the reasons explained below, it is recommended that the motion to proceed in forma pauperis be denied and that the Complaint be dismissed unless Plaintiff timely pays the full filing fee.

         BACKGROUND

         Plaintiff brings this action alleging various violations by prison staff. The Court notes that Plaintiff's allegations in this case are similar to allegations made by him in Roudabush v. Maddox, et al., No. 8:17-cv-3254 (Bivens action, filed December 4, 2017). Prison staff members are interfering with and rejecting Plaintiff's mail. [Doc. 1 at 3.] Prison staff members are refusing to respond to Plaintiff's requests to see mental health professionals. [Id. at 3-4.] Prison staff members are not allowing medical staff to visit Plaintiff in the “SHU” where he is currently housed. [Id. at 4.] Plaintiff has been harassed and verbally abused with regard to his sexual orientation. [Id. at 5.] Plaintiff's rights to freedom of religion have been abridged. [Id.] Plaintiff has been subjected to discrimination based on his race and sexual orientation because Plaintiff is “a gay, white man who was friends with a large group of black males.” [Id. at 6.]

         Plaintiff has filed grievances, which have been returned, and the prison does not provide any administrative remedy options for inmates in the “SHU.” [Id. at 7.] Plaintiff has been denied access to a counselor, case manager, and unit manager, which is the result of retaliation for filing lawsuits against prison staff members. [Id.] Plaintiff has made complaints about the denial of medical care and about his own safety, but no investigation has been conducted and his requests have been denied. [Id. at 8-9.] For his relief, Plaintiff seeks money damages and for the prison staff members to be criminally prosecuted. [Id. at 9.]

         LAW

         The Prison Litigation Reform Act of 1996, Pub.L. No. 104-134, 110 Stat. 1321-71 (1996) (“PLRA”), requires this Court to engage in a preliminary screening of any complaint in which a prisoner seeks redress from a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must identify “cognizable claims or dismiss the complaint, or any portion [thereof, that] is frivolous, malicious, or fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915A(b)(1). Further, the PLRA limits the ability of prisoners to file civil actions without prepayment of filing fees. McLean v. United States, 566 F.3d 391, 393 (4th Cir. 2009). 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 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). Thus, “[w]hen a prisoner has previously filed at least three actions or appeals that were dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted, the Act's ‘three strikes' provision requires that the prisoner demonstrate imminent danger of serious physical injury in order to proceed without prepayment of fees.” McLean, 566 F.3d at 393-94 (citing 28 U.S.C. § 1915(g)).

         In evaluating whether a prior dismissal for failure to state a claim qualifies as a “strike” under § 1915(g), the district court must determine whether the prior dismissal was “one that constituted an adjudication on the merits and prejudiced the filing of a subsequent complaint with the same allegations.” McLean, 566 F.3d at 396 (noting, by contrast, that a dismissal without prejudice for failure to state a claim is not an adjudication on the merits). Accordingly, a dismissal without prejudice for failure to state a claim does not count as a strike. Id. at 397.

         The PLRA's “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. Id. To avoid application of 28 U.S.C. § 1915(g), a prisoner may prepay the filing fee in full. Nevertheless, 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 where the full filing fee is paid at the time of filing. See Green v. Young, 454 F.3d 405, 407 (4th Cir. 2006).

         DISCUSSION

         Plaintiff is subject to the “three strikes” rule under 28 U.S.C. § 1915(g). Plaintiff is a “frequent filer” who has filed more than 100 cases and appeals in various courts around the country.[1] Since December 4, 2017, Plaintiff has filed fifteen cases in this Court at Nos. 8:17-cv-3254, 8:17-cv-3359, 8:17-cv-3417, 8:17-cv-3466, 8:18-cv-311, 8:18-cv-1045, 8:18-cv-1046, ...


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