The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MICHAEL CURTIS REYNOLDS,
Plaintiff,
v. Civil Action No. 5:17CV150
(STAMP)
SIS LT. VANDERVENDER,
SIS LT. W. MULLINS,
HELEN ALTMEYER,
U.S. Attorney Employee
and TARA TIGHE,
U.S. Attorney Employee,
Defendants.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE,
DENYING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS,
DENYING MOTION TO TRANSFER OR CLOSE CASE,
DENYING MOTION FOR JUDICIAL NOTICE AND
DISMISSING PLAINTIFF’S CASE WITHOUT PREJUDICE
I. Background
The pro se1 plaintiff, Michael Curtis Reynolds, filed this
civil action asserting claims under Bivens v. Six Unknown Federal
Narcotics Agents, 403 U.S. 388 (1971). Plaintiff alleges that
defendant Vandervender groped his groin area and “also [made] a
threat of rape.” ECF No. 1 at 7. Plaintiff also alleges that
defendant Mullins entered “fabricated video evidence” in Civil
Action No. 1:17CV124 regarding the incident involving Vandervender.
1“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer. Black’s Law
Dictionary 1416 (10th ed. 2014).
With respect to defendants Altmeyer and Tighe, plaintiff alleges
that they submitted the fabricated video evidence in Civil Action
No. 1:17CV124. For relief, plaintiff wrote on the face of the
complaint: “Punitive Damages [and] Jury Trial.” ECF No. 1.
Thereafter, plaintiff then filed a letter motion (ECF No. 7)
stating that there “is some filing error here” with another civil
action number and requests that this case be transferred or
consolidated with another civil action number. ECF No. 7.
Plaintiff also filed a “Motion Under F.R.Evid. Judicial Notice”
(ECF No. 8), stating that the Court is “mandated” to accept facts
previously provided “in parent case 17-cv-0124.” ECF No. 8 at 1.
Plaintiff requests a “hearing be held immediately as risk of
physical harm remains ongoing.” ECF No. 8 at 2.
This civil action was referred to United States Magistrate
Judge James E. Seibert for initial review and report and
recommendation pursuant to Local Rule of Prisoner Litigation
Procedure 2.
United States Magistrate Judge James E. Seibert entered a
report and recommendation. ECF No. 9. The magistrate judge found
that the Prison Litigation Reform Act (PLRA) of 1995 (“PLRA”)
provides that a sanction shall be imposed on those prisoners who
file meritless lawsuits repeatedly. The sanction is that such
prisoners lose the right to proceed without prepayment of fees and
costs. ECF No. 9 at 2. The magistrate judge’s “review of PACER,
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the nationwide database maintained by the federal courts, indicates
that three of plaintiff’s prior civil cases qualify as strikes
under this provision.” Id. The magistrate judge found that while
the PLRA includes an exception to the § 1915 (g) filing restriction
if the prisoner is under imminent danger of serious physical
injury, that exception cannot apply in this case. Magistrate Judge
Seibert states that the “plaintiff fails to establish facts that he
is under imminent danger of serious physical injury sufficient to
warrant an exception to the PLRA three strikes rule.” ECF No. 9
at 3. The magistrate judge recommended that plaintiff’s case be
dismissed without prejudice pursuant to 28 U.S.C. § 1915 (g), and
his pending motion for leave to proceed in forma pauperis (ECF No.
2), motion to transfer/close (ECF No. 7), and motion for judicial
notice (ECF No. 8) be denied. The magistrate judge further
recommends that plaintiff be advised that if he wishes to pursue
the allegations raised in the instant complaint, he must re-file
the complaint with payment of the $400.00 filing fee. ECF No. 9
at 4.
The magistrate judge informed the plaintiff that “[w]ithin 14
days after being served with a copy of this Report and
Recommendation, Plaintiff may file with the Clerk of Court written
objections identifying those portions of the recommendation to
which objection is made and the basis for such objections.” ECF
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No. 9 at 4. The plaintiff did not file objections to the
magistrate judge’s report and recommendation.
For the reasons that follow, this Court finds that the report
and recommendation of the magistrate judge should be adopted in its
entirety.
II. Applicable Law
Under 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de
novo review of any portion of the magistrate judge’s recommendation
to which objection is timely made. Because the plaintiff did not
file any objections to the report and recommendation, the
magistrate judge’s findings and recommendations will be upheld
unless they are “clearly erroneous or contrary to law.” 28 U.S.C.
§ 636(b)(1)(A).
III. Discussion
In his report and recommendation, the magistrate judge first
correctly found that the Prison Litigation Reform Act of 1995
(“PLRA”) provides that a sanction shall be imposed on those
prisoners who file meritless lawsuits repeatedly. The sanction is
that such prisoners lose the right to proceed without prepayment of
fees and costs, and that three of plaintiff’s prior civil cases
qualify as strikes under this provision. While the magistrate
judge noted that the PLRA includes an exception to the § 1915(g)
filing restriction if the prisoner is under imminent danger of
serious physical injury, and that the plaintiff here has written
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“Imminent Danger Claim” across the front of his complaint, that
exception cannot apply in this case. As the magistrate judge
posited, a clearly conclusory allegation does not suffice.
Further, rather than welcoming a transfer out of FCI Gilmer and
away from defendant Vandervender and the alleged “imminent danger,”
plaintiff filed an Emergency Restraining Order on November 16,
2017, in Civil Action No. 1:17CV124 and indicated that there was an
active attempt to remove him from FCI Gilmer which “must be
prevented” (ECF No. 44 at 1). Thus, as the magistrate judge
properly concluded, the plaintiff has failed to establish facts
that he is under imminent danger of serious physical injury
sufficient to warrant an exception to the PLRA three strikes rule.
The magistrate judge properly concluded that the plaintiff’s
claims against the defendants should be dismissed without prejudice
pursuant to 28 U.S.C. § 1915(g), and that plaintiff’s pending
motions should be denied.
Furthermore, the magistrate judge correctly determined that
the plaintiff should be advised that if he wishes to pursue the
allegations raised in the instant complaint, he must re-file the
complaint with payment of the $400.00 filing fee. ECF No. 9 at 4.
This Court finds no error in any of the above determinations
of the magistrate judge and thus upholds his rulings.
IV. Conclusion
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Because the plaintiff did not objected to the report and
recommendation of the magistrate judge, and because this Court
finds that the magistrate judge’s recommendation is not clearly
erroneous, the report and recommendation of the magistrate judge
(ECF No. 9) is hereby AFFIRMED and ADOPTED in its entirety.
Accordingly, plaintiff’s claims against the defendants are
DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1915(g),
plaintiff’s pending motion for leave to proceed in forma pauperis
(ECF No. 2) is DENIED, plaintiff’s motion to transfer/close (ECF
No. 7) this civil action is DENIED, and plaintiff’s motion for
judicial notice (ECF No. 8) is DENIED.
Furthermore, the plaintiff is advised that if he wishes to
pursue the allegations raised in the instant complaint, he must re-
file the complaint with payment of the $400.00 filing fee.
It is further ORDERED that this case be DISMISSED and STRICKEN
from the active docket of this Court.
Finally, this Court finds that the plaintiff was properly
advised by the magistrate judge that failure to timely object to
the report and recommendation in this action would result in a
waiver of appellate rights. Because the plaintiff has failed to
object, he has waived his right to seek appellate review of this
matter. See Wright v. Collins, 766 F.2d 841, 844-45 (4th Cir.
1985).
IT IS SO ORDERED.
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The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein and to the pro se
plaintiff by certified mail. Pursuant to Federal Rule of Civil
Procedure 58, the Clerk is DIRECTED to enter judgment on this
matter.
DATED: January 18, 2018
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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