United States District Court, W.D. North Carolina, Statesville Division
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 are Plaintiff's Motion to Appoint
Counsel, (Doc. No. 7), and Motion for Preliminary Injunction,
Motion for Temporary Restraining Order, (Doc. No. 8).
Plaintiff has been granted in forma pauperis status. (Doc.
Plaintiff, a North Carolina prisoner incarcerated at
Alexander Correctional Institution in Taylorsville, North
Carolina, filed this action on August 27, 2018, pursuant to
42 U.S.C. § 1983, naming eleven persons as Defendants,
including North Carolina Department of Public Safety
administrators, correctional officers, and others, employed
at all relevant times at various North Carolina prisons,
including Maury Correctional Institution, Central Prison, and
Alexander Correctional Institution. Plaintiff purports to
bring numerous claims against Defendants, including
violations of his federal constitutional rights under the
Eighth, First, Fifth, and Fourteenth Amendments. Plaintiff
complains about numerous alleged incidents of excessive force
at different North Carolina prisons at different times by
various Defendants, and he also alleges claims of failure to
protect based on his allegations that other inmates have
attacked him on different occasions at various North Carolina
prisons, and Defendants did not prevent the assaults or
protect him from them. The grievances attached to
Plaintiff's Complaint indicate that Plaintiff sought
protective custody status when transferred to Alexander
Correctional, where he is now incarcerated, but that prison
officials determined that Plaintiff did not provide
“sufficient evidence to require protective
custody.” See (Doc. No. 1 at 67). Plaintiff
also complains of “retaliation” and
“harassment” by Defendants, and he also purports
to bring various state law claims, including intentional
infliction of emotional distress. Plaintiff seeks
compensatory and punitive damages, as well as transfer away
from Alexander Correctional, or to be placed in protective
custody if he must remain at Alexander.
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). Here, court records indicate that
Plaintiff has filed at least three civil actions that have
been dismissed as frivolous, malicious, or for failure to
state a claim for relief.See Goulette v. Dep't of Pub.
Safety, No. 5:16-ct-3142, Doc. No. 11 (E.D. N.C. Dec. 7,
2016) (on initial screening under Section 1915(e)(2),
dismissing Plaintiff's Eighth Amendment claims “for
failure to state a claim”); Goulette v. The Star
Newspaper, No. 5:06-ct-18-BO, Doc. No. 4 (E.D. N.C. Apr.
12, 2006) (on initial screening under Section 1915,
dismissing Plaintiff's claim as “frivolous”);
Goulette v. Krynicki, No. 5:06-ct-3022-BO, Doc. No.
19 (E.D. N.C. Feb. 15, 2007) (on the defendants' summary
judgment motion, concluding that “[t]he Eighth
Amendment claim must fail” because Plaintiff did not
state an Eighth Amendment claim based on failure to
protect). Accordingly, Plaintiff is 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 was under
imminent danger of serious physical injury as required by
§ 1915(g) when he filed this action..
Plaintiff has complained of assaults and generalized threats
by gang members in every prison where he has so far been
incarcerated in North Carolina, but he does not articulate
any specific threat since being transferred to Alexander.
Moreover, as noted, prison officials at Alexander found that
Plaintiff has not produced sufficient evidence to warrant
placing him in protective custody. In sum, for the reasons
stated herein, this action will be dismissed without
prejudice to refile this action after Plaintiff has paid the
full filing fee.
reasons stated herein, the Court will dismiss this action
because Plaintiff is barred by the three-strikes rule in
§ 1915(g), he has not shown that he is under imminent
risk of serious physical injury, and he has not paid the
filing fee. This action is dismissed without prejudice to
Plaintiff to refile after paying the full filing fee.
IS, THEREFORE, ORDERED that:
the reasons stated herein, this action is dismissed without
prejudice to Plaintiff to refile after paying the full filing
Plaintiff's Motion to Appoint Counsel, (Doc. No. 7), and
Motion for Preliminary Injunction, Motion for Temporary