United States District Court, W.D. North Carolina, Statesville Division
JESUS S. MORALES, Plaintiff,
S. WHITE, et al., Defendants.
D. Whitney Chief United States District Judge.
MATTER is before the Court on initial review of
Plaintiff's Complaint, filed under 42 U.S.C. § 1983,
(Doc. No. 1). See 28 U.S.C. §§ 1915A and
1915(e). Also pending before the Court are the following
motions by Plaintiff: (1) Motion to Appoint Counsel, (Doc.
No. 3); Motion for Preliminary Injunction, Motion for
Temporary Restraining Order, (Doc. No. 4); Motion for
Production of Documents, (Doc. No. 8); and Motion for
Preliminary Injunction, (Doc. No. 11).
Plaintiff Jesus S. Morales, inmate No. 1085030, is a North
Carolina prisoner incarcerated at Alexander Correctional
Institution in Taylorsville, North Carolina. Plaintiff is a
frequent filer of civil rights lawsuits, having initiated at
least eleven lawsuits in this and other federal courts in
North Carolina. Plaintiff filed this action on December 5,
2016, naming the following individuals as Defendants: (1)
Susan White, identified as the Administrator at Alexander;
(2) John Doe Dye, identified as the Assistant Superintendent
of Alexander; (3) George T. Solomon, identified as the
Director of Prisons of the North Carolina Department of
Public Safety; (4) Frank Perry, identified as the Secretary
of Correction of the North Carolina Department of Public
Safety; and (5) David Mitchell, identified as the Western
Regional Director for the North Carolina Department of Public
Safety. (Doc. No. 1 at 5). Plaintiff complains that his
constitutional rights are being violated with respect to his
disability and confinement to a wheelchair due to an injury
to his back and spine. Specifically, in support of his claim
against Defendants, Plaintiff alleges the following facts:
Plaintiff is and has been housed at Alexander Correctional
Inst. since December 10, 2014. Plaintiff states that he is
being deprived of a constitutional right and laws of the
United States and a federal status and possible of the Policy
with the N.C. Department of Public Safety. Plaintiff states
that he is confined to wheelchair due to his disabilities due
to a injury to his back and spine. Defendants has
intentionally and took the Plaintiff's orderly from him
for several days as of allowed his Orderly to push the
Plaintiff to and from chow, to and from medication window on
unit and other places the Plaintiff was need to go since
November 16, 2015. Plaintiff is being denied a handicap cell
with grab bars and the door way is not wide enough for his
wheelchair to come in and out. Plaintiff is being denied a
standard walker, good-time credit due to the fact that
Plaintiff is unable to take a job in prison because he is
unable to lift over 25 pounds or push over 25 pounds and
unable to walk very far because of being dizzy and blacking
out. Plaintiff is also being denied other service and
benefits while being at Alexander Correctional Inst. and does
not have enough room to get around in his cell due to it
being small with his wheelchair and property in his cell.
Plaintiff is not able to clean his cell like other inmates
each week as well. All the Defendants have acted and
continuing to act under color of state law at all times
relevant to this Complaint.
(Id. at 6-7). Plaintiff seeks a preliminary
injunction and punitive damages. (Id. at 8).
provisions of 28 U.S.C. § 1915 are mandatory and define
the degree and scope of this Court's initial review of
Plaintiff's Complaint. See Crawford-El v.
Britton, 523 U.S. 574, 596 (1998) (discussing the Prison
Litigation Reform Act (“PLRA”)). Section 1915(g)
of the PLRA provides:
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). The Fourth Circuit Court of Appeals
has held that a strike under Section 1915(g) will also
include a judgment on a summary judgment motion where the
dismissal states on its face that the dismissed action is
frivolous, malicious, or fails to state a claim. Blakely
v. Wards, 738 F.3d 607, 613 (4th Cir. 2013).
complaint will be dismissed because he has filed three pro se
§ 1983 complaints, Plaintiff was allowed to proceed in
forma pauperis, and each of the three complaints was
dismissed as being frivolous, malicious or for failure to
state a claim under the provisions of the PLRA. See
Morales v. Paynter, No. 5:12-ct-3167-F (E.D. N.C.
filed Aug. 22, 2012) (granting Defendants' Rule 12(b)(6)
motion to dismiss for failure to state a claim, no appeal
taken); Morales v. Correct Care Solutions,
LLC, No. 1:10cv265-TDS-PTS (M.D. N.C. filed Apr. 2,
2010) (recommendation of magistrate judge to grant summary
judgment to defendants and dismiss with prejudice, where
plaintiff failed to state an Eighth Amendment claim of
deliberate indifference, subsequently adopted by district
court judge, affirmed on appeal); Morales v. Yale,
No. 1:10-cv-266-CCE-PTS (M.D. N.C. filed Apr. 2, 2010)
(granting one defendant's motion for judgment on the
pleadings and the remaining defendant's motion for
summary judgment, and dismissing with prejudice, where
plaintiff failed to state an Eighth Amendment claim of
deliberate indifference or cruel and unusual punishment, both
dispositions adopted by district judge, no appeal taken).
Plaintiff is, therefore, subject to 28 U.S.C. §
1915(g)'s bar to filing civil actions in forma pauperis
unless he can show that he is under imminent danger of
serious physical injury. Plaintiff fails to demonstrate in
his Complaint in this action that he is under imminent danger
of serious physical injury as required by § 1915(g).
Therefore, this action will be dismissed without prejudice
because Plaintiff has not paid the full filing fee.
reasons stated herein, the Court will dismiss this action
without prejudice to Plaintiff to refile ...