United States District Court, D. Maryland
Catherine C. Blake United States District Judge
Marshall, a Maryland Division of Correction prisoner housed
at Western Correctional Institution (“WCI”),
seeks money damages for injuries sustained in an incident
that occurred on July 22, 2015, during Marshall’s
transport from North Branch Correctional Institution
(“NBCI”) to a court hearing. Marshall also seeks
injunctive relief mandating his transfer from WCI to another
facility in order to shield him from retaliation from those
involved in the incident. He names Officers Hickey and
Spitzer as the individuals who allegedly denied him pain
medication and assaulted him during transport on July 22,
2015, and claims generally that the other defendants ignored
his concerns regarding threats and retaliation during the
investigation of the incident or during his monthly
segregation review meetings. (ECF 1). In addition to the
complaint, Marshall provides a motion for leave to proceed in
forma pauperis. (ECF 2).
a self-represented litigant who has repeatedly filed
complaints subject to dismissal under 28 U.S.C. § 1915A
and 28 U.S.C. § 1915(e)(2), is barred generally from
civil filings under the ''three strikes''
provision of the Prison Litigation Reform Act
(“PLRA”), 28 U.S.C. § 1915(g). For reasons to
follow, dismissal of the complaint without prejudice is
appropriate under the “three strikes” provision.
Marshall has “three strikes” under the PLRA, he
is not permitted to file a civil action unless he pays the
full filing fee or proves he is under imminent danger of
serious physical injury. Marshall has not paid the filing
fee. The July 22, 2015 incident does not meet the criteria
for consideration under the “three strikes”
provision, and Marshall’s claim for money damages for
injuries sustained in the incident must be dismissed without
prejudice. As to his allegation of possible retaliation,
aside from his self-serving and speculative claim that he may
be injured if not transferred from WCI, Marshall does not
demonstrate that he is in imminent danger of serious physical
courts have long recognized that the grant of interim
equitable relief is an “extraordinary remedy involving
the exercise of a very far-reaching power.” Direx
Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802,
811 (4th Cir. 1991). A plaintiff seeking such relief must
establish that he is “likely to succeed on the merits,
that he is likely to suffer irreparable harm in the absence
of preliminary relief, that the balance of equities tips in
his favor, and that an injunction is in the public
interest.” Winter v. National Resource Defense
Council, Inc., 555 U.S. 7, 20 (2008). All four of these
requirements must be established independently before
injunctive relief can be granted. See The Real Truth
About Obama, Inc., v. Federal Election Commission, 575
F.3d 342, 346 (4th Cir. 2009), vacated on other grounds, 559
U.S. 1089 (2010), reinstated in relevant part on remand, 607
F.3d 355 (4th Cir. 2010) (per curiam).
second Winter factor is dispositive here: Marshall
has not demonstrated that he is in imminent danger, merely
that he fears he may be assaulted because Hickey and Spitzer
work at WCI and may be involved should Marshall require
transportation services in the future. It would offend due
process were the court to wield its equitable power under
these circumstances; it declines to do so.
claim for money damages based on defendants’ failure to
transfer him could not proceed, even if he were not subject
to the “three strikes” bar, as Marshall failed to
complete administrative exhaustion prior to the filing of his
complaint. Marshall filed his Administrative Remedy Process
(“ARP”) grievance concerning the need for
separation between him and Officers Hickey and Spitzer on
April 18, 2016. (ECF 1-1 at p. 1, ARP No. WCI-0869-16). The
ARP was dismissed by the acting warden on May 18, 2016, after
Marshall failed to submit documentation to support his claim.
(Id. at pp. 2-3). Marshall does not appear to have
appealed that decision, but instead filed the instant
complaint one week later, on May 27, 2016. See Booth
v. Churner, 532 U.S. 731, 741 (2001). A claim which
has not been exhausted may not be considered by this court.
See Jones v. Bock, 549 U.S. 199, 220 (2007). While a
court typically must rely on defendants to raise the failure
to exhaust as an affirmative defense, see Jones v.
Bock, 549 U.S. 216-17 (2007), it is apparent here that
exhaustion has not occurred.
these reasons, a separate order shall be entered denying in
forma pauperis status and dismissing the case without
 The Clerk shall amend the docket to
reflect all party defendants.
 See Marshall v. Lanham, No.
AW-97-990 (D. Md. 1997); Marshall v. Corr. Center of
Howard Cnty., No. AW-97-2536 (D. Md. 1997); and
Marshall v. Kemmerer, No. AW-02-2133 (D. Md.
Marshall may of course refile the
action and pay the full $400 filing fee at the time of