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Oliver v. Young

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

January 29, 2019

DAN OLIVER, Plaintiff,
v.
YOUNG, Defendant.

          MEMORANDUM OPINION

          HON. JACKSON L. KISER SENIOR UNITED STATES DISTRICT JUDGE

         This matter comes before the court on Magistrate Judge Pamela M. Sargent's Report and Recommendation (the "R&R"), which recommends that this action be dismissed without prejudice pursuant to the three-strikes rule of 28 U.S.C. § 1915(g). ECF No. 18. Oliver timely filed his objections. ECF No. 23. For the reasons that follow, I will overrule Oliver's objections, adopt the R&R in its entirety, deny Oliver's pending motions, ECF Nos. 14, 27, and dismiss the complaint without prejudice, ECF No. 1.

         I. Background

         On October 21, 2018, Oliver, an inmate at Wallens Ridge State Prison, filed a 42 U.S.C. § 1983 civil rights complaint alleging that the defendant had violated his Eighth Amendment rights because his cell mate threatened to fight and kill Oliver, the kitchen staff put something in his food to make him lose weight, and prison staff put dust, lint, and smelly odor in the air circulation vents.[1] As a result of the defendant's actions, Oliver claims to have suffered physical and emotional injuries. He seeks injunctive relief and damages and requests permission to proceed in forma pauperis ("IFP").

         During initial screening, I determined that Oliver was a three-striker, and that his claims may implicate imminent danger. Order, ECF No. 3. I then referred the matter to the magistrate judge for an R&R on whether Oliver may proceed IFP. Id. Judge Sargent held a hearing and entered the R&R on November 28, 2018. In the R&R, Judge Sargent recommended that I deny the motion to proceed IFP and dismiss the action without prejudice because of Oliver's failure to pay the filing fee and his status as a vexatious litigant under the Three Strikes Rule. See R&R at 6. On December 14, 2018, Oliver timely filed objections to the R&R.

         II. Standard of Review

         A. R&R

         In a report pursuant to 28 U.S.C. § 636(b), the magistrate judge makes only recommendations to the court. The recommendations have no presumptive weight, and responsibility for making a final determination remains with the court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court is charged with making a de novo review of those portions of the report to which specific objection is made, and may "accept, reject, or modify, in whole or in part, the findings or recommendations" of the magistrate judge. 28 U.S.C. § 636(b)(1). In the absence of specific objections to the report, the court is not required to give any explanation for adopting the recommendation. Cambv v. Davis, 718 F.2d 198, 199-200 (4th Cir. 1983). Objections that only repeat arguments raised before a magistrate judge are considered general objections to the entirety of the report and recommendation, which has the same effect as a failure to object. Venev v. Astrue. 539 F.Supp.2d 841, 845 (W.D. Va. 2008).

         B. Three-Strikes Rule

         The Prison Litigation Reform Act ("PLRA") restricts plaintiffs from proceeding IFP under the following conditions:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States 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). To demonstrate imminent danger, a plaintiff must make "specific fact allegations of ongoing serious physical injury, or of a pattern of misconduct evidencing the likelihood of imminent serious injury." Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003).

         Further, the plaintiff must show that the "conduct complained of threatens continuing or future injury, not whether the inmate deserves a remedy for past conduct." Id.

         III. ...


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