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Barber v. Virginia Department of Corrections

United States District Court, W.D. Virginia, Roanoke Division

March 1, 2016

OVELL T. BARBER, Plaintiff,
v.
VIRGINIA DEPARTMENT OF CORRECTIONS, et al., Defendants.

MEMORANDUM OPINION

Hon. Michael F. Urbanski, United States District Judge.

Ovell T. Barber, a Virginia prisoner proceeding pro se, commenced this civil action pursuant to 42 U.S.C. § 1983, naming the Virginia Department of Corrections ("VDOC") and the Virginia Parole Board ("VPB") as defendants. The court dismisses the action due to Plaintiffs failure to comply with the filing fee provisions of 28 U.S.C. §§ 1914 and 1915.

After reviewing court records, it appears that Plaintiff had at least three non-habeas civil actions or appeals dismissed as frivolous, as malicious, or for failing to state a claim before he commenced this action. See, e.g.. Barber v. Jacobsen, 102 F.App'x 817, 818 (4th Cir. 2004) (appeal dismissed as frivolous); Barber v. Jacobsen, No. 2:04cvl95, slip op. at 1 (E.D. Va. Apr. 16, 2004) (dismissed as frivolous); Barber v. Supreme Court of Virginia, No. 2:05cv512, slip op. at 1 (E.D. Va. Sept. 8, 2005) (dismissed with prejudice for failure to state a claim); Barber v. Alderman, No. 2:03cv467, slip op. at 1 (E.D. Va. July 9, 2003) (dismissed with prejudice for failure to state a claim); Barber v. Guillory, No. 2:96cv670, slip op. at 1 (E.D. Va. Sept. 23, 1996) (dismissed with prejudice for failure to state a claim); see also McLean v. United States, 566 F.3d 391, 399 (4th Cir. 2009) (dismissals without prejudice for frivolousness should not be exempted from 28 U.S.C. § 1915(g)). However, 28 U.S.C. § 1915(g) provides: "In no event shall a prisoner bring a civil action proceeding [without prepayment of the filing fee] ... if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal... that was dismissed on the grounds that it is 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. § 1915(g).

Plaintiffs brief conclusion that he is under "imminent danger of serious physical harm" is not entitled to an assumption of truth. Plaintiff alleges that an addiction to drugs and alcohol led him to attempt suicide in 1988 and caused his incarceration decades ago. Plaintiff believes that his drug and alcohol addiction is "again leading him to have suicidal thoughts and gestures" because his recent transfer to Red Onion State Prison ("ROSP") prevents him from participating in many VDOC programs, including any drug and alcohol programs.[1] Plaintiff believes such programming is necessary because he was recently denied parole due, in part, to a "history of substance abuse."[2] Plaintiff concludes that the VDOC and VPB are discriminating against him by not transferring him from ROSP, a high-security, Level-S institution, to Lawrenceville Correctional Center, a medium-security, Level-3 institution, where he could attend more drug and alcohol treatment programs. Notably, Plaintiffs requested relief for this action is not immediate medical treatment; he demands a transfer to a less secure facility and for the VPB to reconsider his parole without referencing a history of substance abuse.

Plaintiff does not sufficiently allege any facts indicating that he is currently under any imminent threat of any serious physical injury within the meaning of 28 U.S.C. § 1915(g). The injury contemplated under § 1915(g) "must be imminent or occurring at the time the complaint is filed, " and when prisoners "allege only a past injury that has not recurred, courts deny them leave to proceed" without prepayment of the filing fee. See, e.g., Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003). Furthermore, Plaintiffs vague, speculative, and non-specific allegations of future self harm are not sufficient or entitled to an assumption of truth.[3] Plaintiffs conclusion of "imminent danger" is unsubstantiated, relying on insufficient facts or details that do not present a real probability that he is in imminent danger of serious physical injury. See Pauline v. Mishner, No. 09-00182, 2009 U.S. Dist. LEXIS132142, at *7, 2009 WL 1505672, at *3 (D. Haw. May 28, 2009) (stating plaintiffs vague and conclusory allegations of possible future harm to himself are insufficient to trigger the "imminent danger" exception); Taylor v. Walker. No. 07-706, 2007 U.S. Dist. LEXIS 90849, *4, 2007 WL 4365718, *2 (S.D. 111. Dec. 11, 2007) (recognizing a prisoner cannot create the imminent danger so as to escape the three strikes provision of the PLRA and because "[e]very prisoner would then avoid the three strikes provision by threatening to commit suicide"); Cooper v. Bush, No. 3:06cv653, 2006 U.S. Dist. LEXIS 49870, *3 n.3, 2006 WL 2054090, *2 n.3 (M.D. Fla. July 21, 2006) (stating plaintiffs allegations that he will commit suicide, or that he has already attempted suicide and will do so again, are insufficient to show imminent danger). Moreover, Plaintiff has not shown a sufficient connection between his alleged "imminent danger" and the denial of parole or place of incarceration. See, e.g., Pettus v. Morgenthau, 554 F.3d 293, 298 (2d Cir. 2009) ("[T]he complaint of a three-strikes litigant must reveal a nexus between the imminent danger it alleges and ...


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