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Lester v. Henthorne

United States District Court, D. South Carolina

February 6, 2019

Steve Lester, #075259, Plaintiff,
v.
Michael Henthorne, Defendant.

          REPORT AND RECOMMENDATION

          Thomas E. Rogers, III United States Magistrate Judge

         This is a civil action filed by a state prisoner, proceeding pro se. Pursuant to 28 U.S.C. § 636(b)(1) and District of South Carolina Local Civil Rule 73.02(B)(2)(e), the undersigned is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the district court.

         STANDARD OF REVIEW

         Under established local procedure in this judicial district, a careful review has been made of the pro se complaint filed in this case. This review has been conducted pursuant to the procedural provisions of 28 U.S.C. §§ 1915, 1915A, and the Prison Litigation Reform Act of 1996, and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir.1995) (en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir.1983).

         This court is required to liberally construe pro se complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Such pro se complaints are held to a less stringent standard than those drafted by attorneys. Id.; Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Even under this less stringent standard, however, the pro se complaint is subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which plaintiff could prevail, it should do so, but a district court may not rewrite a complaint to include claims that were never presented, construct the plaintiff's legal arguments for him, or conjure up questions never squarely presented to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985); Small v. Endicott, 998 F.2d 411 (7th Cir. 1993); Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990) (The “special judicial solicitude” with which a [court] should view such pro se complaints does not transform the court into an advocate.).

         DISCUSSION

         Plaintiff has filed a Motion for Leave to Proceed in forma pauperis under 28 U.S.C. § 1915. (ECF No. 2). However, Plaintiff is subject to the “three-strikes” rule of the PLRA, which provides:

In no event shall a prisoner bring a civil action or appeal a judgement 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 its 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. § l 915(g).

         Strike 1: On March 27, 2012, the court deemed a dismissal for frivolousness without prejudice as a strike. Lester v. Ratigan, No. 4:12-cv-00016-TMC (ECF No. 20)(the Fourth Circuit Court of Appeals affirmed). On June 1, 2017, in addressing Plaintiff's strike history, the court found the March 2012 strike was still a valid strike due to its frivolousness even after McLean v. United States, 566 F.3d 391, 400 (4th Cir. 2009). See Lester v. Perry Correctional Inst., et al, No. 4:16-cv-03829-TMC (ECF No. 17 at 5)(the Fourth Circuit Court of Appeals affirmed).

         Strike 2: On November 28, 2012, the court deemed a dismissal for frivolousness with prejudice as a strike. Lester v. Perry Correctional Inst., et al, No. 4:12-cv-3038-TMC (ECF No. 16 at 3)(plaintiff did not appeal the decision).

         Strike 3: On January 11, 2013, the court deemed a dismissal for frivolousness with prejudice as a strike. Lester v. Ratigan, No. 6:12-cv-3410 (ECF No. 15 at 3)(the Fourth Circuit Court of Appeals dismissed the appeal).

         Plaintiff has received three strikes.

         The three-strikes rule was enacted to bar prisoners, such as the Plaintiff here, who have filed prior frivolous litigation in a federal court, from pursuing certain types of federal civil litigation without prepayment of the filing fee. This Court may take judicial notice[1] that in at least three of the Plaintiff's prior twelve non-habeas cases filed in this district since 2009, a “strike” has been entered because the civil actions were finally dismissed as frivolous. See Smith v. Williams, No. 0:97-cv-1918-PMD-BM (D.S.C.)(granting defendants' motion for summary judgment, dismissing action as frivolous, and noting that the dismissal constituted a strike under the PLRA, appeal dismissed by Fourth Circuit Jan. 21, 1999); Smith v. Rutherford, No. 0:97-1201-PMD-BM (D.S.C.)(granting defendants' motion for summary judgment, dismissing action as frivolous, and noting that the dismissal constituted a strike under the PLRA, Fourth Circuit affirmed June 11, 1999); Smith v. Bessinger, No. 0:97-cv- 0051-PMD-BM (D.S.C.)(dismissing case as malicious and frivolous pursuant to 28 U.S.C. ยง 1915(e)(2)(B) and noting that the dismissal constituted a strike under the PLRA, appeal dismissed by Fourth ...


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