United States District Court, S.D. Alabama, Southern Division
DARRYL D. RIGGINS, AIS #184051, Plaintiff,
SOPHAK KUOY, et al., Defendants.
REPORT AND RECOMMENDATION
BERT W. MILLING, Jr., Magistrate Judge.
Plaintiff, an Alabama prison inmate proceeding pro se and in forma pauperis, filed this § 1983 action in the Circuit Court of Escambia County, Alabama, which was removed by Defendant Sophak Kuoy and Defendant Ashley Kidd to the Middle District of Alabama. The Middle District of Alabama concluded that, based on the facts proposed by Plaintiff, the Southern District of Alabama is the appropriate venue in which Plaintiff's Complaint should be reviewed. On May 12, 2014, this case was transferred to this federal district court for appropriate action.
Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(4), this prisoner action has been referred to the undersigned, and it is recommended that this action be dismissed without prejudice pursuant to 28 U.S.C. § 1915(g) for the reasons stated herein, unless Plaintiff pays the $400 filing fee within the time period for filing objections to this Report and Recommendation.
I. Nature of Proceedings
Reviewing the record, it appears that Plaintiff was allowed to proceed in state court without paying a filing fee. Thereafter, Defendants removed the action to federal court and in doing so, paid the $400 filing fee. (Doc. 10 at 2). Upon transfer to this Court, Defendant Kidd was ordered to file her Special Report and Defendant Kuoy was ordered to supplement her Special Report with supporting evidence compliant with the Court's standing order regarding medical records, which they did. (Docs. 11, 12, 15). The gist of Plaintiff's Complaint is that he was denied asthmatic breathing treatments by Defendants because he is a smoker; and, it was only after presenting a sick call request slip that he was screened by another nurse and ultimately given chest x-rays and multiple breathing treatments. (Doc. 10 at 14).
A. Subject Matter Jurisdiction
When an action is removed to this Court, one of the Court's initial inquiries is whether its subject matter jurisdiction over the removed action exists. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 587-88, (1999) (examining the existence of "subject-matter jurisdiction at the outset of a case... [is] often... the most efficient way of going") (citation and quotation marks omitted and alterations in the original). A review of Plaintiff's Complaint indicates that this Court has concurrent jurisdiction with the state court over this § 1983 action. Felder v. Casey, 487 U.S. 131, 139, (1988) (state courts possess concurrent jurisdiction with federal courts over § 1983 actions). Therefore, because the Court's jurisdiction over a removed prisoner action is not defeated by 28 U.S.C. § 1915(g), the Court must engage in its § 1915(g) screening process before proceeding to the merits of Plaintiff's Complaint. See Lloyd v. Benton, 686 F.3d 1225, 1227 (11th Cir. 2012).
B. 28 U.S.C. § 1915(g)
Though this Court has jurisdiction over Plaintiff's § 1983 action, a determination must nonetheless be made ascertaining whether the action may proceed, or if it is precluded by 28 U.S.C. § 1915(g). Section 1915(g) provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section [28 U.S.C. § 1915] 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.
By enacting the PLRA, which included § 1915(g), Congress sought "to reduce the quantity of inmate suits." Jones v. Bock, 549 U.S. 199, 223, (2007). To bring about the reduction of "the number of frivolous cases filed by imprisoned plaintiffs, who have little to lose and excessive amounts of free time with which to pursue their complaints[, ]" "Congress placed various restrictions on the ability of prisoners to seek judicial relief and the form such relief may take." Al-Amin v. Smith, 637 F.3d 1192, 1195 (11th Cir. 2011) (quotation marks and citation omitted). Therefore, in order to effectuate the intent of Congress in enacting the PLRA, the Court is obligated to apply § 1915(g) to prisoner actions that are filed initially with the Court and prisoner actions that are removed to this Court. See Skinner v. Switzer, ___ U.S. ___, 131 S.Ct. 1289, 1299-1300, (2011) (holding that Congress "add[ed] 28 U.S.C. § 1915(g) to revoke, with limited exception, in forma pauperis privileges for any prisoner who has filed three or more lawsuits that fail to state a claim, or are malicious or frivolous"); Abdul-Akbar v. McKelvie, 239 F.3d 307, 315 (11th Cir.) ("Potentially negative consequences in federal courts, as distinguished from state courts, are precisely the consequences intended by Congress.")(emphasis in original), cert. denied, 533 U.S. 953 (2001). Whereas, not to apply the "three-strikes" rule to Plaintiff's removed state court action would allow Plaintiff to accomplish an end-run around the "three-strikes" rule by filing in state court and hoping, perhaps, for removal of his action to this Court, without paying the required filing fee.
In reviewing the records of the United States District Courts for the Southern, Middle, and Northern Districts of Alabama, the Court discovered that Plaintiff has at least three actions or appeals that were dismissed as frivolous, malicious, or for failure to state a claim upon which relief can be granted, namely, Riggins v. Hilbert, CA 02-2184-RBP-JEO (N.D. Ala. Feb. 13, 2003)(dismissed for failure to state a claim upon which relief may be granted); Riggins v. Coody, CA 99-1230-MHT-SRW (M.D. Ala. Nov. 23, 1999)(dismissed as frivolous or malicious); Riggins v. Hightower, CA 99-0952-WHA-CSC (M.D. Ala. Apr. 7, 2000)(dismissed as frivolous or malicious and as failing to state a claim upon which relief may be granted); Riggins v. Hightower, CA ...