Opinion
Civil Action No. 2:19-cv-97
04-17-2019
DAVID MORRIS BARREN, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE; UNITED STATES DRUG ENFORCEMENT ADMINISTRATION; CHARLES J. PETERS, individually and in their official capacity; BRIAN AVERI, individually and in their official capacity; CLIFFORD BROWN, individually and in their official capacity; MICHAEL GERACI, individually and in their official capacity; SUSAN CONINE, individually and in their official capacity; DOUG YOUHOUSE, individually and in their official capacity; WILKINSBURG POLICE DEPARTMENT; JOHN HIERONYMUS, individually and in their official capacity; and UNKNOWN SENIOR ATTORNEY, individually and in their official capacity, Defendants.
Judge Nora Barry Fischer/Magistrate Judge Maureen P. Kelly Re: ECF No. 2 MEMORANDUM ORDER
David Morris Barren ("Plaintiff"), is presently incarcerated and is a pro se litigant. The current civil action filed by Plaintiff, pending before this Court, was transferred here by the United States District Court for the District of Columbia. ECF No. 4. The transferring court did not address the pending Motion for Leave to Proceed In Forma Pauperis (the "IFP Motion"). ECF No. 2.
Plaintiff filed the IFP Motion in order to prosecute a prisoner civil rights complaint. After this civil rights action was transferred to this Court, the case was referred to United States Magistrate Judge Maureen P. Kelly for pretrial proceedings in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Rule 72 of the Local Rules for Magistrate Judges. The Magistrate Judge's Report and Recommendation, ECF No. 6, was filed on February 19, 2019, and recommended that Plaintiff's IFP Motion be denied because Plaintiff has acquired three strikes and the Complaint does not reveal that Plaintiff is under imminent danger of serious physical injury. Service was made on the Plaintiff at his address of record, as well as at FCI-Loretto, the prison where the Report and Recommendation noted that the Federal Bureau of Prisons Inmate Locator says Plaintiff is currently housed. Plaintiff was initially given until March 8, 2019 by which to file objections. As no objections were filed by that date, this Court issued an Order on March 11, 2019 adopting the Report and Recommendation as the Opinion of the Court. ECF No. 7. The Court's Order was later vacated after Plaintiff filed a motion for an extension of time to file objections, and he was given until April 10, 2019 to file his objections. ECF 10. Plaintiff's objections dated April 8, 2019 were received by the Court on April 11, 2019 wherein he contests the Report and Recommendation's finding that he has three strikes and is not permitted to proceed IFP in this matter, because he has not alleged imminent danger of serious bodily injury. ECF No. 14. In the interim, Plaintiff moved to transfer the case back to the U.S. District Court for the District of Columbia and Magistrate Judge Kelly denied his motion on March 27, 2019. ECF 13.
After providing de novo review of the IFP Motion, the Report and Recommendation, and Plaintiff's Objections, the Court enters the following order:
IT IS HEREBY ORDERED that Plaintiff's IFP Motion [2] is DENIED;
IT IS FURTHER ORDERED that Plaintiff's Objections [14] are OVERRULED as this Court agrees with Magistrate Judge Kelly's analysis that the challenged actions all constitute strikes under 28 U.S.C. 1915(g)(2);
IT IS FURTHER ORDERED the Report and Recommendation [6], filed on February 19, 2019, by Magistrate Judge Kelly, is adopted as the opinion of the court; and,
IT IS FURTHER ORDERED that Plaintiff shall pay the entire filing fee of $400.00 by May 8 , 2019 or the case will be dismissed without further warning for failure to prosecute.
By the Court:
s/Nora Barry Fischer
Nora Barry Fischer
United States District Judge cc: The Honorable Maureen P. Kelly
United States Magistrate Judge
DAVID MORRIS BARREN
09803-068
FCI-Loretto
Federal Correctional Institution
P.O. BOX 1000
LORETTO, PA 15940