United States District Court, D. South Carolina, Charleston Division
REPORT AND RECOMMENDATION
Rogers, a state prisoner proceeding pro se, is suing
the Supreme Court of South Carolina under 42 U.S.C. §
1983. Under 28 U.S.C. § 636(b)(1)(B) and Local Civil
Rule 73.02(B)(2) (D.S.C.), the assigned United States
Magistrate Judge is authorized to review Rogers' filings
and submit a recommendation to the United States District
matter is before the Court on Rogers' motion to proceed
in forma pauperis (“IFP”). (Dkt. No. 2.)
For the following reasons, the undersigned recommends denying
case relates to a habeas action Rogers filed in the state
Supreme Court. (Dkt. No. 1 at 4.) When Rogers filed his
petition, he asked to proceed IFP. (Id.) His request
was denied. (Id.) Rogers did not pay the filing fee,
so the Supreme Court dismissed the case. (See id.)
Rogers argues the denial of his request violated his
constitutional right of access to the courts. (Id.
Prison Litigation Reform Act bars prisoners from proceeding
IFP in civil cases if they previously have had three or more
cases dismissed as frivolous, malicious, or failing to state
a claim upon which relief may be granted. 28 U.S.C. §
1915(g). Prisoners who have accumulated those three
“strikes” must prepay the filing fee unless they
are “under imminent danger of serious physical
is a prolific litigant. See Rogers v. Rankin, No.
3:18-cv-2905-TMC-MGB, 2018 WL 6070587, at *3 (D.S.C. Nov. 2,
2018) (summarizing the numerous cases Rogers has filed over
the past eighteen years), report and recommendation
adopted, 2018 WL 6065357 (D.S.C. Nov. 20, 2018).
However, his lawsuits have been unsuccessful, and over the
years, he has had accrued at least three strikes.
Id. at *5-6. Just last November, this Court denied
Rogers IFP status in another § 1983 case and ordered
that the case would be dismissed if Rogers did not pay the
filing fee. Rogers, 2018 WL 6065357, at *1.
Court should take the same course here. Rogers' strikes
are all still valid, and Rogers has neither alleged nor shown
that he is in imminent danger of physical harm. Consequently,
§ 1915(g) prevents Rogers from proceeding with this case
unless he prepays the filing fee. Although Rogers has
submitted a form from his prison indicating he has no money
in his prison account, the undersigned recommends giving
Rogers an opportunity to pay the fee before dismissing the
case. See Rogers, 2018 WL 6070587, at *2 (noting
this Court's practice of giving plaintiffs denied IFP
status an opportunity to pay the filing fee).
above reasons, the undersigned recommends that: (1) the Court
deny Rogers' IFP motion; 2) the Court give Rogers
twenty-one days to pay the filing fee; and (3) if Rogers does
not timely pay the filing fee, the Court dismiss the case
without prejudice and have the Clerk enter final judgment at
the end of the payment period.
IS SO RECOMMENDED.
of Right to File Objections to Report and
parties are advised that they may file specific written
objections to this Report and Recommendation with the
District Judge. Objections must specifically identify
the portions of the Report and Recommendation to which
objections are made and the basis for such
objections. “[I]n the absence of a timely
filed objection, a district court need not conduct a de novo
review, but instead must ‘only satisfy itself that
there is no clear error on the face of the record in order to
accept the recommendation.'” Diamond v.
Colonial Life & Acc. Ins. Co., 416 F.3d 310
(4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory
written objections must be filed within fourteen (14) days of
the date of service of this Report and Recommendation. 28
U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see
Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal