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Rogers v. South Carolina Supreme Court

United States District Court, D. South Carolina, Charleston Division

March 12, 2019

Hayward Rogers, # 278510, Plaintiff,
v.
South Carolina Supreme Court, Defendant.

          REPORT AND RECOMMENDATION

         Hayward 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 Judge.

         This 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 the motion.

         BACKGROUND

         This 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. at 6.)

         DISCUSSION

         The 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 injury.” Id.

         Rogers 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.

         The 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).

         CONCLUSION

         For the 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.

         IT IS SO RECOMMENDED.

         Notice of Right to File Objections to Report and Recommendation

         The 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 committee's note).

         Specific 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 ...


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