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Van Dyke v. Abernathy

United States District Court, E.D. North Carolina, Western Division

November 19, 2014


Dennis Roger Van Dyke, Plaintiff, Pro se, Spruce Pine, NC.


LOUISE W. FLANAGAN, United States District Judge.

Plaintiff filed this action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). On May 8, 2014, the court entered an order notifying plaintiff that his complaint was unclear and directing him to particularize his allegations. Plaintiff was cautioned that his amended pleading would be considered his complaint in its entirety. Plaintiff submitted his amended pleading on May 23, 2014, and the matter is before the court for frivolity review of plaintiff's amended pleading pursuant to 28 U.S.C. § 1915. In this posture, the issues raised are ripe for adjudication.

The Prisoner Litigation Reform Act (" PLRA") allows the court to dismiss a prisoner's action " 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). This subsection is known as the " three strikes" provision of the PLRA. See Altizer v. Deeds, 191 F.3d 540, 544-45 (4th Cir. 1999).

At least three previous cases filed by plaintiff have been dismissed as frivolous or for failure to state a claim upon which relief may be granted. See Van Dyke v. Davis, et. al, 1:06-CV-172-GCM, (W.D. N.C. dismissed June 13, 2006); Van Dyke v. McKeller, et al., 1:06-CV-00192-GCM, (W.D. N.C. dismissed June 28, 2006) (appealed and dismissed for failure to prosecute); and Van Dyke v. Thornburg, et al, 1:06-CV-200-GCM, (W.D. N.C. dismissed June 28, 2006) (appealed and affirmed by unpublished opinion June 21, 2007). Plaintiff also has had a prior suit dismissed pursuant to § 1915(g), and has since been recognized as a " three strikes" litigant. See Van Dyke v. Conrad, No. 1:12-CV-153, PMD, 2012 WL 3024451 (W.D.N.C dismissed July 24, 2012).

Because plaintiff has three strikes, he must show that he is under imminent danger of serious physical injury in order to proceed without prepayment of the filing fee. See 28 U.S.C. § 1915(g). Section 1915(g)'s imminent danger " exception [to the three-strikes rule] focuses on the risk that the conduct complained of threatens continuing or future injury, not on whether the inmate deserves a remedy for past misconduct." Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). Vague, speculative, or conclusory allegations are insufficient to invoke the exception of § 1915(g); rather the inmate must make " specific fact allegations of ongoing serious physical injury, or of a pattern of misconduct evidencing the likelihood of imminent serious physical injury." Id.

Plaintiff's particularized pleading remains difficult to understand. Plaintiff primarily challenges his North Carolina state criminal conviction, but also includes some random allegations of imminent danger of serious physical injury. Most of plaintiff's allegations of imminent danger focus on events that occurred while he was incarcerated at the Rutherford County Detention Center, Pender Correctional Institution, as well as correctional facilities in both Butner and Raleigh, North Carolina. See (Compl. Attach. pp. 1, 2, 4, 5, 16, 7, 15, 16.) Plaintiff, however, was incarcerated at Tabor Correctional Institution (" Tabor") at the time he filed this action, and now is incarcerated at Avery Mitchell (" Avery Mitchell") Correctional Institution.[1] Because plaintiff was not incarcerated at any of the aforementioned correctional facilities (aside from Tabor or Avery Mitchell) at the time he filed this action, he was not under imminent danger of serious physical injury from prison officials at the aforementioned correctional facilities at the time he filed his complaint. See Chase v. O'Malley, 466 F.App'x 185, 186 (4th Cir. 2012).

To the extent plaintiff alleges he was in imminent danger of serious physical injury at Tabor, his allegations either relate to prior instances of conduct or are vague and conclusory. For instance, plaintiff alleges that defendant Dr. Bell[2] denied plaintiff a colonoscopy when " plaintiff told him colon cancer runs on [his] mother's side of [his] family." (Compl. Attach. p. 6.) However, aside from plaintiff's speculative allegations, he does not allege facts sufficient to suggest that Bell's actions threatened him with imminent physical harm at the time he filed the complaint. Martin, 319 F.3d at 1050 (stating that speculative allegations are insufficient to invoke § 1915(g)'s imminent danger exception). Thus, this allegation does not satisfy the imminent danger requirement.

Plaintiff additionally states that he is " falsely incarcerated and [his] life is in Imminent Danger daily from the neglect[] of [his] proper medications mental and medical that [he] need[s] and [is] being denied of such as pain meds, colonoscopy, sciatic nerve, depression, [] medical shoes, back brace, double mattress etc." (Compl. Attach. p. 22.) Plaintiff, however, has not provided any factual support for this claim. Nor has plaintiff connected the alleged deliberate indifference to defendant Bell or any prison official at Avery Mitchell, where he currently is incarcerated. As stated, vague and general allegations are not sufficient to satisfy section 1915(g)'s imminent danger requirement. See Johnson v. Warner, 200 F.App'x 270, 272 (4th Cir. 2006); White v. State of Colorado, 157 F.3d 1226, 1231-32 (10th Cir. 1998); see also, Richardson v. Joseph, No. 7: 06-CV-215, 2006 WL 1075160, at *2 (W.D. Va. April 21, 2006) (finding no " imminent danger" in allegation that doctor changed inmate's blood pressure medication without conducting a physical examination where inmate did not specify any adverse side effects he had experienced or allege facts indicating that the new medication was harmful); Caradine/Assabur v. Hubbard, No. 5: 11cv281, 2011 WL 6937196, at *2 (E.D. Ark., Dec. 7, 2011) (vague complaint that prisoner suffers from colon cancer, sugar diabetes, hypertension, high blood pressure, dislocated deformities in his foot, and tuberculosis did not support a finding that the prisoner was in imminent danger of serious harm). For these reasons, section 1915(g) does not permit plaintiff to proceed as a pauper in this action.

For the reasons stated, the court DISMISSES without prejudice plaintiff's action under 28 U.S.C. § 1915(g). The Clerk of Court is DIRECTED to close the case.


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