United States District Court, D. South Carolina, Charleston Division
Hayward L. Rogers, #278510, Plaintiff,
Casey N. Rankin, Alan M. Wilson, and State of South Carolina, Defendants.
REPORT AND RECOMMENDATION
GORDON BAKER UNITED STATES DISTRICT JUDGE.
Rogers (“Plaintiff”) has filed a civil action
pursuant to 42 U.S.C. § 1983 against three Defendants,
challenging the validity of his 2001 convictions. (DE#1,
Complaint). He is proceeding pro se and has applied
to proceed in forma pauperis (“IFP”).
Plaintiff is a state prisoner incarcerated at McCormick
Correctional Institution located in South Carolina. Pursuant
to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule
73.02(B)(2)(D.S.C.), the United States Magistrate Judge is
authorized to review the record and to submit findings and
recommendations to the United States District Judge. Upon
careful review, including a review of Plaintiff's
extensive litigation history, the Magistrate Judge recommends
that the Plaintiff has accrued three strikes and should be
denied permission to proceed IFP; but that Plaintiff should
be given twenty-one (21) days in which to pay the filing fee,
for the following reasons:
The PLRA's Three Strikes Provision
Prison Litigation Reform Act (“PLRA”) provides in
relevant part that:
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 language of the statute
expressly indicates that it applies to civil actions and to
appeals. See, e.g., Banks v. Hornak, 698 Fed.Appx.
731, 2017 WL 2788587 (June 27, 2017) (“[W]e conclude
that Petitioner is barred from proceeding in forma
pauperis on appeal by operation of Section
1915(g).”), cert. denied, 138 S.Ct. 483 (Nov.
27, 2017). The PLRA's three-strikes provision operates to
bar certain prisoners from proceeding IFP, but does not
provide a basis to dismiss claims. Id. at n.2,
citing 28 U.S.C. § 1915(g).
present Plaintiff has previously been given express written
warnings about the possible consequences of the PLRA's
three-strike provision. See, e.g., Rogers v. Wilson et
al., Case No. 2:16-cv-558-TMC-MGB (see DE#17 at 3,
“Plaintiff is warned that if he continues to file
pleadings that are frivolous, malicious, or fail to state a
claim for which relief may be granted, he risks the
accumulation of three strikes against him and the resulting
denial of future requests for IFP status, absent exceptional
Relevant Case Law
2009, the Fourth Circuit Court of Appeals held that for a
dismissal of a civil action to count as a strike, the
dismissal must be “with prejudice.” McLean v.
United States, 566 F.3d 391, 399 (4th Cir. 2009).
Therefore, some of Plaintiff's prior strikes based on
dismissals without prejudice may no longer be counted as
strikes. A prisoner's entire action must be dismissed on
one or more of the enumerated grounds of § 1915(g) in
order to count as a strike. Tolbert v. Stevenson,
635 F.3d 646 (4th Cir. 2011) (“the section speaks of
prior actions dismissed as frivolous, malicious, or
for failure to state a claim”); Everett v.
Whaley, 504 Fed.Appx. 245, 246 (4th Cir. 2013) (same);
Rivera v. Stirling, Case No. 8:15-cv-4482-JMC-JDA,
2016 WL 4059151 (D.S.C. July 27, 2016) (same, finding that
prisoner had three strikes), affirmed, 672 Fed.Appx.
264 (4th Cir. Dec. 22, 2016), reh'g en banc
denied (Jan. 18, 2017).
Fourth Circuit Court of Appeals has further instructed that
an order of summary judgment may count as a strike for
purposes of the PLRA's three-strikes provision, so long
as the case is being dismissed for enumerated reasons of the
three-strike provision, i.e. the case is “frivolous,
malicious, or fails to state a claim.” Blakely v.
Wards, 738 F.3d 607, 609 (4th Cir. 2013) (en
banc), as amended (Oct. 22, 2013); see also
Miller v. Hooks, 2015 WL 2452927, *2 n.4 (S.D.Ga. 2015)
(citing Blakely and observing that “the Fourth
Circuit's position in this regard is persuasive”).
The Fourth Circuit Court of Appeals indicated that a district
court's order of dismissal need not include language
formally designating a strike. Blakely, 738 F.3d at
631, n.3 (“Whether a court rings the PLRA bell in its
opinion or judgment order is immaterial, so long as the
summary judgment dismissal is explicitly predicated on one of
the three grounds enumerated in Section 1915(g).”). In
other words, if the dismissal of the case meets the criteria
of Section 1915(g), it counts as a strike, regardless of
whether the judgment expressly designates a strike.
a prisoner has already had three cases [or appeals] dismissed
as frivolous, malicious, or for failure to state a claim for
which relief may be granted, the prisoner generally may not
proceed IFP but rather must pay up-front all filing fees for
his subsequent suits.” Blakely, 738 F.3d at
609. After the Fourth Circuit's en banc decision
in Blakely, district courts within this circuit have
reviewed a prisoner's past § 1983 dismissals, found
three valid strikes for dismissals with prejudice, and
determined that the prisoner was not entitled to proceed IFP.
For example, in Cabbagestalk v. S.C. Dept. of
Corrections, Case No. 5:13-cv-3036-RMG-KDW, 2014 WL
1093094 (D.S.C. March 14, 2014), the District Court found
that the prisoner had accrued “three strikes under 28
U.S.C. § 1915(g) and therefore must pay the Court's
filing fee or show that he is under imminent danger of
serious physical injury.” The Court gave him
“fifteen days from the date of the entry of this order
to pay the Court's filing fee” and ordered that
“if Plaintiff fails to pay the fee within this
fifteen-day period, the Clerk shall dismiss this action
without prejudice and without issuance and service of
in Odom v. Hailey, the District Court summarily
dismissed a case because the prisoner had accrued three valid
strikes under the applicable statute and was “now
barred from proceeding in forma pauperis in any
civil action or appeal filed while he is incarcerated or
detained in any facility unless he is under imminent danger
of serious physical injury.” Odom v. Haley,
Case No. 5:15-cv-1951-RMG-KDW, 2015 WL 3843321, *1 (D.S.C.
May 29, 2015), adopted by, 2015 WL 3865814, *1
(D.S.C. June 19, 2015), affirmed as modified, 627
Fed.Appx. 250 (4th Cir. Dec. 30, 2015).
prisoner has three strikes and does not allege that he is in
any imminent danger, some courts in judicial districts within
the Fourth Circuit have immediately dismissed the
prisoner's § 1983 action without prejudice to the
prisoner's ability to re-file the complaint upon payment
of the full filing fee. See, e.g., Morales v. White,
2017 WL 489430 (W.D. N.C. Feb. 6, 2017) (district court
determined that prisoner had filed three previous § 1983
complaints, all of which were dismissed as frivolous,
malicious or for failure to state a claim, and therefore,
could no longer proceed IFP; the case was dismissed without
prejudice to the prisoner's ability to refile after
paying the full filing fee); Shuler v. Hargrave,
2013 WL 5962987 (W.D. N.C. Nov. 7, 2013) (same), appeal
dism'd (4th Cir. Feb 7, 2014).
courts within the Fourth Circuit, including courts within
this judicial district, have given the plaintiff a specified
period of time in which to pay the filing fee and ordered
that the case would be dismissed if the filing fee was not
timely paid. See, e.g., Cabbagestalk, 2014 WL
1093094, *1 (ordering that case would be dismissed unless
plaintiff paid filing fee within 15 days); Blakely v.
White, Case No. 6:15-03782-MGL-KDW, 2015 WL 6549546
(D.S.C. Oct. 13, 2015), adopted, 2015 WL 6549172
(D.S.C. Oct. 27, 2015) (same, giving plaintiff 21 days to pay
the full filing fee).