Opinion
Civil Action No. 20 - 1760
11-30-2020
ERIC X. RAMBERT, Plaintiff, v. JOHN E. WETZEL, et al., Defendants.
District Judge Nora Barry Fischer
REPORT AND RECOMMENDATION
I. RECOMMENDATION
It is respectfully recommended that Plaintiff's Motion to Proceed in forma pauperis (ECF No. 1) be denied in accordance with 28 U.S.C. § 1915(g) and that this action be dismissed until such time that Plaintiff pays the full $400.00 filing fee.
II. REPORT
This action was initiated by Plaintiff Eric X. Rambert with the submission of a Motion for Leave to Proceed in forma pauperis ("IFP") that was filed on November 17, 2020. (ECF No. 1.) Upon review of Plaintiff's Motion, the Court has discovered that Plaintiff is prohibited from proceeding IFP pursuant to 28 U.S.C. § 1915(g) because he has accumulated three or more "strikes" and may not proceed IFP absent a showing of imminent danger. See 28 U.S.C. § 1915(g). The "three strikes rule" is codified at 28 U.S.C. § 1915(g) and provides as follows:
See Abdul-Akbar v. McKelvie, 239 F.3d 307, 310 (3d Cir. 2001) (noting that 28 U.S.C. § 1915(g) is "popularly known as the 'three strikes' rule"), cert. denied, 533 U.S. 953 (2001).
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 was 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). In sum, under the three strikes rule, a prisoner who, on three or more prior occasions while incarcerated, has filed an action in a federal court that was dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted, must be denied in forma pauperis status unless he is in imminent danger of serious physical injury. 28 U.S.C. § 1915(g).
The Court takes judicial notice of court records and dockets of the Federal Courts located in Pennsylvania as well as those of the Court of Appeals for the Third Circuit. See DiNicola v. DiPaolo, 945 F. Supp. 848, 854 n.2 (W.D. Pa. 1996) (court is entitled to take judicial notice of public records). The computerized dockets of those courts reveal that Plaintiff has accumulated at least "three strikes" within the contemplation of 28 U.S.C. § 1915(g).
The three strikes that Plaintiff has accumulated are the following. The first strike is Rambert v. Barrett, No. 2:95-cv-71-BPM-FXC (W.D. Pa.), which was dismissed as legally frivolous on February 21, 1995. The second strike is Rambert v. Horn, et al., No. 2:97-cv-337-DJL-FXC (W.D. Pa.), which was dismissed for failure to state a claim on December 5, 1997. The third strike is Rambert v. Krasner, et al., No. 2:19-cv-5249-JLS (E.D. Pa.), which was dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(ii) on February 21, 2020. Furthermore, the fact that at least one of these strikes occurred before the enactment of the PLRA is no bar to counting it as a strike. See Keener v. Pennsylvania Bd. of Probation and Parole, 128 F.3d 143, 144-45 (3d Cir. 1997) (joining those circuits in holding that dismissals for frivolousness prior to the passage of the PLRA on April 26, 1996, count as "strikes" under § 1915(g)).
The fact that Plaintiff's claims that were barred by Heck v. Humphrey, 512 U.S. 477 (1994) were dismissed without prejudice is of no consequence to whether this case counts as a strike. See Lomax v. Ortiz-Marquez, 140 S. Ct. 1721 (2020) (holding that dismissal for failure to state a claim counts as strike regardless of whether the dismissal is with or without prejudice). Nor is it of consequence that the case is currently pending on appeal. See Coleman v. Tollefson, 575 U.S. 532 (2015).
The undersigned finds that Plaintiff has three strikes against him. As such, in order to proceed in forma pauperis, Plaintiff must allege facts showing that he was in imminent danger of serious physical injury at the time he filed the complaint. See Abdul-Akbar v. McKelvie, 239 F.3d 307 (3d Cir. 2001) (overruling Gibbs v. Roman, 116 F.3d 83, 86 (3d Cir. 1997)). In making this determination, the court should construe all allegations in a complaint in favor of the plaintiff. Gibbs v. Cross, 160 F.3d 962, 965 (3d Cir. 1998); Gibbs v. Roman, 116 F.3d at 86. Imminent dangers are those dangers which are about to occur at any moment or are impending. Abdul-Akbar, 239 F.3d 307 at 315. Practices that "may prove detrimental ... over time" do not represent imminent dangers as the harm is not "about to occur at any moment." Ball v. Famiglio, 726 F.3d 448, 468 (3d Cir. 2013), abrogated in part on other grounds by Coleman v. Tollefson, ___ U.S. ___, 135 S. Ct. 1759 (2015) (quoting Abdul-Akbar, 239 F.3d at 315) (internal quotation marks omitted). Further, even if an alleged harm may in fact be "impending", it does not satisfy the exception if it does not threaten to cause "serious physical injury." 28 U.S.C. § 1915(g). Vague or conclusory allegations are insufficient to meet this standard. See Ball, 726 F.3d at 468.
The undersigned has reviewed the operative Complaint. See ECF No. 1-1. Viewing the allegations in the Complaint most generously to Plaintiff, the undersigned finds that there is no showing of imminent danger of a serious physical injury. Therefore, Plaintiff is barred from proceeding in this lawsuit in forma pauperis under 28 U.S.C. § 1915(g).
Plaintiff's allegations center around the Pennsylvania Department of Corrections dismantling of the PORTAL program and his subsequent transfer to the Long Term Segregation Unit at SCI-Greene.
III. CONCLUSION
For the foregoing reasons, it is respectfully recommended that Plaintiff's Motion to Proceed in forma pauperis (ECF No. 1) be denied in accordance with 28 U.S.C. § 1915(g) and that this action be dismissed until such time that Plaintiff pays the full $400.00 filing fee.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of a copy of this Report and Recommendation to file objections. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.
Dated: November 30, 2020.
/s/ Lisa Pupo Lenihan
Lisa Pupo Lenihan
United States Magistrate Judge cc: Eric X. Rambert
AM-9223
SCI Fayette
PO Box 9999
Labelle, PA 15450