Burrell v. Mayer, No. 3:2022cv00801 - Document 18 (E.D. Va. 2023)

Court Description: MEMORANDUM OPINION. Signed by District Judge Roderick C. Young on 9/29/2023. Copy to Plaintiff as directed. (jsmi, )

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Burrell v. Mayer Doc. 18 Case 3:22-cv-00801-RCY-MRC Document 18 Filed 09/29/23 Page 1 of 3 PageID# 458 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division JOEL AARON BURRELL, Plaintiff, v. Civil Action No. 3:22CV801 (RCY) RANDY MAYER, Defendant. MEMORANDUM OPINION Joel Aaron Burrell, Virginia inmate proceeding pro se, filed this 42 U.S.C. § 1983 action. By Memorandum Order entered on March 23, 2023, the Court granted Burrell leave to proceed in forma pauperis. (ECF No. 11, at 1.) As explained below, Burrell’s extensive litigation history reflects that it was incorrect to grant Burrell leave to proceed in forma pauperis. Accordingly, the March 23, 2023 Memorandum Order will be VACATED. The pertinent statute provides: In no event shall a prisoner bring a civil action [in forma pauperis] 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). Given the above restrictions, the Affidavit in Support of Request to Proceed In Forma Pauperis, which the Court sent to Burrell, required Burrell to: “List all of your prior cases that were dismissed as frivolous, malicious, or failed to state a claim upon which relief could be granted . . . .” (ECF No. 7, at 2.) Burrell listed a single case, “Burrell v. Unknown, No. 1:18cv140 . . . .” (Id.) That statement is incorrect. Dockets.Justia.com Case 3:22-cv-00801-RCY-MRC Document 18 Filed 09/29/23 Page 2 of 3 PageID# 459 At the time Burrell requested to proceed in forma pauperis in the present action, Burrell had more than three civil actions dismissed for failure to state a claim upon which relief can be granted. On at least three occasions, [Burrell] has had civil actions dismissed pursuant to 28 U.S.C. § 1915A(b)(1): Burrell v. Commonwealth of Virginia, No. 1:18cv140 (E.D. Va. Feb. 12, 2018) (dismissed without prejudice for failure to state a claim, pursuant to 28 U.S.C. § 1915A(b)(1)); Burrell v. Anderson, et al., No. 1:21cv864, 2022 WL 3053763, 2022 U.S. Dist. LEXIS 139192 (E.D. Va. June 29, 2022) (dismissed without prejudice for failure to state a claim, pursuant to 28 U.S.C. § 1915A(b)(1)), aff’d, Nos. 22-6870, 22-6950, 2022 WL 17819306, 2022 U.S. App. LEXIS 35139 (4th Cir. Dec. 20, 2022); and Burrell v. Schofield, et al., No. 1:21cv865 (E.D. Va. July 29, 2021) (dismissed with prejudice for failure to state a claim, pursuant to 28 U.S.C. § 1915 A(b)(1)), appeal dismissed, Burrell v. Pilot, 2021 U.S. App. LEXIS 32364 (4th Cir. Oct. 28, 2021). “A dismissal of a suit for failure to state a claim counts as a strike [under § 1915(g)], whether or not with prejudice.” Lomax v. OrtizMarquez, ––– U.S. ––––, 140 S. Ct. 1721, 1727, 207 L.Ed.2d 132 (2020). Burrell v. Shirley, No. 1:22CV716 (TSE/WEF), 2023 WL 5228958, at *1 n.1 (E.D. Va. July 20, 2023). Furthermore, providing false or inaccurate information regarding past lawsuits is “in-andof itself, a valid ground for dismissing a complaint” or denying leave to proceed in forma pauperis. See Brown v. Saintavil, No. 2:14–CV–599–FtM–29DNF, 2014 WL 5780180, at *2 (M.D. Fla. Nov. 5, 2014) (citing Redmon v. Lake County Sheriff’s Office, 414 F. App’x 221, 226 (11th Cir. 2011) Hood v. Tompkins, 197 F. App’x 818, 819 (11th Cir. 2006); Shelton v. Rohrs, 406 F. App’x 340, 341 (11th Cir. 2010); Young v. Secretary Fla. for Dep’t of Corr., 380 F. App’x 939 (11th Cir. 2010)). Burrell’s “lack of candor in his application to proceed in forma pauperis is unacceptable.” In re Forrest, 403 F. App’x 768, 769 n.1 (3d Cir. 2010). Burrell was obliged to inform the Court of his prior strikes under 28 U.S.C. § 1915(g). Id. Burrell’s deliberate omissions regarding his litigation history warrants the denial of his request to proceed in forma pauperis. 2 Case 3:22-cv-00801-RCY-MRC Document 18 Filed 09/29/23 Page 3 of 3 PageID# 460 Furthermore, at the time he filed this action, Burrell was not in imminent danger of serious physical harm, and thus his request to proceed in forma pauperis should have been denied. See 28 U.S.C. § 1915(g). Accordingly, Burrell’s request to proceed in forma pauperis will be DENIED. The action will be DISMISSED WITHOUT PREJUDICE. Burrell remains free to file a new complaint with the $402.00 filing fee. An appropriate Final Order will accompany this Memorandum Opinion. /s// Roderick C. Young United States District Judge Date: September 29, 2023 Richmond, Virginia 3

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