United States District Court, D. South Carolina
James L. Roudabush, Jr., #82038-083, Plaintiff,
Mark Inch, et al., Defendants.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin United States Magistrate Judge.
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.
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.
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
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.]
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)).
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.
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).
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. 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, ...