Opinion
Civil Action No. 16-86
04-11-2017
DEMETRIUS BAILEY, Plaintiff, v. MICHAEL OVERMYER, et al., Defendants.
ORDER ORDER ADOPTING REPORT AND RECOMMENDATION AND REVOKING PLAINTIFF'S IN FORMA PAUPERIS STATUS
Before the Court is the Report and Recommendation ("R&R") of the Honorable Susan Paradise Baxter, United States Magistrate Judge, recommending that the Court grant Defendants' motion to revoke Plaintiff's in forma pauperis status [Dkts. 20, 24]; vacate the previous Order granting Plaintiff in forma pauperis status [Dkt. 3]; deny Plaintiff's Motion to Proceed in forma pauperis [Dkt. 1]; and dismiss this action without prejudice to Plaintiff's right to reopen by paying the full $400 filing fee. Dkt. 49. Specifically, the R&R states that Plaintiff previously filed three cases that were dismissed as failing to state a claim. Id. at 5 (citing Bailey v. Price, No. 2:99-cv-470 (W.D. Pa. 1999); Bailey v. Crisanti., No. 2:00-cv-1310) (W.D. Pa. 20000); Bailey v. Rozum, No. 3:13-cv-78 (W.D. Pa. 2015)). Thus, the R&R states, Plaintiff has accumulated "three strikes" within the contemplation of the Prison Litigation Reform Act ("PLRA"). Id. at 2-5 (citing 28 U.S.C. § 1915(g)). Plaintiff filed objections to the R&R. Dkt. 53. When a party objects to an R&R, the district court must review de novo those portions of the R&R to which objection is made. See United States v. Raddatz, 447 U.S. 667, 673 (1980); Fed. R. Civ. P. 72(b). However, to obtain de novo review, a party must clearly and specifically identify those portions of the R&R to which it objects. Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984). The district court may accept, reject, or modify, in whole or in part, the findings and recommendations made by the Magistrate Judge. Raddatz, 447 U.S. at 673-74.
Here, Plaintiff's sole objection is that Bailey v. Rozum should not count as a strike because it was not "dismissed in its entire[t]y" for failure to state a claim. Dkt. 53. Plaintiff is incorrect. The Bailey v. Rozum record is clear: the district court judge adopted the magistrate judge's lengthy report recommending, inter alia, that the court dismiss the case for Plaintiff's failure to state a claim. No. 3:13-cv-78 (W.D. Pa. 2015). Indeed, in the related matter of Rambert v. Johnson, this Court recently ruled that Bailey v. Rozum counts as a strike against Plaintiff. 2016 WL 6573855 (W.D. Pa. Nov. 7, 2016).
A prisoner-plaintiff who has accumulated three strikes may nevertheless be properly granted in forma pauperis status if he demonstrates that he is in imminent danger of serious physical injury. Abdul-Akbar v. McKelvie, 239 D.3d 307 (3d Cir. 2001)). "[T]he court should assess 'imminent danger' as of the time the prisoner's complaint is filed[;] and [ ] a prisoner's allegation that he faced danger in the past is insufficient to allow him to proceed I.F.P." Id. at 311 (internal citations omitted). Here, Plaintiff's Complaint does not allege that he is in imminent danger. See Dkt. 4. Accordingly, pursuant to the PLRA, Plaintiff must be denied in forma pauperis status. See, e.g., Abdul-Akbar, 239 F.3d at 315; Ball v. Famiglio, 726 F.3d 448, 468 (3d Cir. 2013); Brown v. Lyons, 977 F. Supp. 2d 475, 484 (E.D. Pa. 2013). Having found that Plaintiff's case must be dismissed without prejudice to his right to reopen by paying the full $400 filing fee, the Court need not address Defendant's alternative motion to dismiss for improper joinder. Dkt. 20.
Similarly, Plaintiff has not alleged that he is in imminent danger in either his relevant briefing or in his Objections. See Pl's. Opp. Def's. Mot., Dkt. 22; Pl's. Objs., Dkt. 53. --------
Accordingly, the Court HEREBY ORDERS:
(1) The Court ADOPTS the Report and Recommendation [Dkt. 49];
(2) Defendants' Motion to Revoke Plaintiff's in forma pauperis status [Dkt. 20] is GRANTED;
(3) The Court's previous Order granting Plaintiff in forma pauperis status [Dkt. 3] is VACATED;
(4) Plaintiff's Motion to Proceed in forma pauperis [Dkt. 1] is DENIED;
(5) This case is DISMISSED WITHOUT PREJUDICE;
(6) This case is CLOSED.
IT IS SO ORDERED.
DATED this 11th day of April, 2017.
/s/_________
BARBARA J. ROTHSTEIN
UNITED STATES DISTRICT JUDGE