United States District Court, W.D. Virginia, Roanoke Division
MICHAEL S. GORBEY, Plaintiff,
FELPS, et al., Defendants.
Jackson L. Kiser Senior United States District Judge.
S. Gorbey, a federal inmate proceeding pro se,
commenced this civil action pursuant to Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388, 389 (1971), by November 18, 2016. Plaintiff did not
pay the filing fee upon commencing the action and sought
leave to proceed in forma pauperis pursuant to 28 U.S.C.
previously determined that Plaintiff had at least three
non-habeas civil actions or appeals previously dismissed as
frivolous, as malicious, or for failing to state a claim
before filing this action. I also had determined that a statement
in the complaint implicated the exception to the
three-strikes provision for imminent danger of a serious
physical injury. Consequently, I referred to a magistrate
judge per 28 U.S.C. § 636(b)(1)(B) the question of
whether Plaintiff was under imminent danger of serious
physical injury at the time of filing the complaint for being
forced to endure below freezing temperatures in his cell
while wearing only a paper shirt and paper shorts for four
magistrate judge has issued a report, recommending denying
Plaintiff leave to proceed in forma pauperis. The
magistrate judge determined, inter alia, that
Plaintiff was not under an imminent danger of serious
physical injury at the time he filed the complaint. Plaintiff
filed a motion to subpoena and a motion for preliminary
injunction, and he has objected to the report and
recommendation. I have reviewed the report and
recommendation, the transcript of the hearings before the
magistrate judge, and Plaintiffs objections. For the
following reasons, I overrule the objections, adopt the
report and recommendation, deny Plaintiffs motions, and
dismiss the complaint without prejudice.
district judge must review a report and recommendation to
which a party objects, and the district judge must provide
its independent reasoning when a party raises new evidence or
a new argument in an objection. 28 U.S.C. §
636(b)(1)(C); Orpiano v. Johnson, 687 F.2d 44, 47
(4th Cir. 1982). The reasoning need not be elaborate or
lengthy, but it must provide a specific rationale that
permits meaningful appellate review. See, e.g..
United States v. Carter, 564 F.3d 325, 330 (4th Cir.
2009). However, de novo review is not required when
objections concern legal issues and not factual issues.
See, e.g., Orpiano, 687 F.2d at 47.
Similarly, de novo review is not required "when
a party makes general or conclusory objections that do not
direct the court to a specific error in the magistrate
judge's proposed findings and recommendations."
Id. A district court is also not required to review
any issue when no party has objected. See, e.g.,
Thomas v. Arn, 474 U.S. 140, 149 (1985); Cambv
v. Davis, 718 F.2d 198, 200 (4th Cir. 1983).
objects for several reasons, none of which are convincing.
Plaintiffs argument that the magistrate judge's
"bias" requires her recusal and a new hearing with
another magistrate judge is baseless and frivolous. Equally
frivolous is Plaintiffs objection, and related motion to
subpoena, to require a doctor to testify on Plaintiffs
behalf. Plaintiff admitted during the first hearing that he
did not have the funds to pay .for a valid subpoena, and his
offer to file a doctor's affidavit would not be
admissible evidence. The court will neither issue nor enforce
a "subpoena" unaccompanied by the requisite fees,
and the magistrate judge did not prohibit Plaintiff from
making his own arrangements to subpoena any doctor. Moreover,
Plaintiff refused during the first hearing to ask Dr. Asher,
the prison doctor, to testify on his behalf on account of
Plaintiffs repeated "malpractice" complaints
against that doctor. Also frivolous are Plaintiffs assertions
that the two hearings were "absolutely unfair" and
"completely one sided" and that 28 U.S.C. §
1915(g) is unconstitutional. See, e.g.. Polanco
v. Hopkins, 510 F.3d 152, 156 (2d Cir. 2007).
with the magistrate judge's legal and factual decisions
for the reasons discussed in the report and recommendation
and, notably, as evidenced by the hearing transcripts.
See Wimmer v. Cook, 774 F.2d 68, 76 (4th Cir. 1985)
(noting a district judge must exercise nondelegable authority
in performing a de novo review by considering the actual
testimony and not merely reviewing the magistrate's
report and recommendations). The prison's air handler
distributed the same conditioned air of approximately 68
degrees equally among prisoners' and staffs zoned areas
during the heating season. Plaintiff alleged there was a
silicone plug in a one inch by three inch hole in his
cell's window, and he acknowledged that the plug would
leak when he "wiggle[d]" it. Even if outside
nighttime low temperatures were as low as 30 degrees, that
temperature was temporary as it increased to daytime highs of
up to 73 degrees. Even if his window leaked air as low as 30
degrees though a small plugged hole during nighttime hours
for four consecutive days, Plaintiff fails to establish that
the temperature in his cell subjected him to imminent danger
of serious physical harm.
I deny Plaintiffs motion to subpoena, overrule Plaintiffs
objections, adopt the report and recommendation, and deny
Plaintiffs motion for leave to proceed in forma
pauperis. Consequently, I dismiss the complaint without
prejudice due to Plaintiffs failure to pay the filing fee at
the time of filing the complaint. See, e.g.,
Dupree v. Palmer, 284 F.3d 1234, 1237 (11th Cir.
2002) (reasoning that the riling fee is due upon filing a
civil action when in forma pauperis provisions do
not apply to plaintiff and that the court is not required to
permit plaintiff an opportunity to pay the filing fee after
recognizing plaintiff is ineligible to proceed in forma
pauperis). I deny Plaintiffs motion for a preliminary
injunction as moot.
 Plaintiffs other moniker is Michael
 See Owlfeather-Gorbev v.
Jackson, et al., No. 2:16-cv-00551, slip op. at 4 (E.D.
Va. Sept. 22, 2016) (dismissed for failing to state a claim);
Gorbey v. The State of Virginia, et al.. No. 2:1
l-cv-00164, slip op. at 4 (E.D. Va. Mar. 17, 2011) (dismissed
for failing to state a claim); Gorbey v. United States,
et al.. No. 2:08-cv-00121, slip op. at 3-4 (N.D. W.Va.
July 7, 2010); see, e.g.. Gorbey v. Fed. Bureau of
Alcohol Tobacco. Firearms. & Explosives, et al.. No.
5:1 l-cv-00126, slip op. at 5-10 (N.D. W.Va. Mar. 14, 2012)
(M.J., Seibert) (listing 25 cases that qualify as strikes);
see also Coleman v. Tollefson.135 S.Ct. 1759, 1763
(2015) (holding a "strike" dismissal is counted
regardless to the timing of a subsequent appeal); Mc ...