United States District Court, D. South Carolina, Columbia Division
Hayward L. Rogers, # 278510, Plaintiff,
Lexington County Court of General Sessions and Casey Rankin-Smith, Defendants.
GORDON BAKER UNITED STATES MAGISTRATE JUDGE
Rogers, a state prisoner proceeding pro se, is suing
under 42 U.S.C. § 1983. This matter is before the Court
on Rogers' motion to proceed in forma pauperis
(âIFPâ). (Dkt. No. 2.) Under 28 U.S.C. Â§ 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. For the following reasons, the undersigned
recommends denying the motion.
case relates to a post-conviction relief action and a
new-trial motion Rogers filed in state court. (Dkt. No. 1 at
6.) He alleges that the court did not appoint him counsel and
that defendant Rankin-Smith has refused to provide him
evidence that can prove his innocence. (Id.) Rogers
claims those actions violated his constitutional rights to
due process and 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 accrued at least three strikes. Id. at
*5-6. Just three months ago, this Court denied Rogers IFP
status in another § 1983 case and ordered that the case
would be dismissed if he did not pay the filing fee. See
Rogers v. S.C. Sup. Ct., No. 2:19-cv-653-TMC, 2019 WL
1585025 (D.S.C. Apr. 12, 2019); see also Rogers,
2018 WL 6065357, at *1 (reaching same result last November).
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