Opinion
Civil Action 22 - 1216
08-30-2022
ABRAHAM JUNIOR CRUZ, Plaintiff, v. SOCIAL SECURITY ADMINISTRATION, SOCIAL SECURITY ADMINISTRATION DIRECTORS, JUDGE DAVID RONALD CASHMAN, CLERKS, and SECRETARIES, Defendants.
Christy Criswell Wiegand District Judge
ORDER
Lisa Pupo Lenihan United States Magistrate Judge
AND NOW this 30th day of August, 2022, it is HEREBY ORDERED that the Court's Order granting Plaintiff's Motion for Leave to Proceed in forma pauperis (ECF No. 5) is VACATED.
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 remain administratively closed until such time that Plaintiff pays the full $402.00 filing fee.
II. REPORT
Plaintiff Abraham (Junior) Cruz (“Plaintiff”) is a prisoner currently in the custody of the Pennsylvania Department of Correction (“DOC”). He initiated this action by submitting for filing a Motion and Declaration in Support of Motion to Proceed in forma pauperis (ECF No. 1) 1 along with a Civil Complaint (ECF No. 1-1). The undersigned has conducted a review of Plaintiff's case filings in federal court and finds that Plaintiff is prohibited from proceeding in forma pauperis pursuant to the “three strikes rule” at 28 U.S.C. § 1915(g). As such, it is recommended that his Motion to Proceed in forma pauperis be denied.
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).
The “three strikes rule” is codified at 28 U.S.C. § 1915(g) and provides as follows:
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).
Dismissals that occurred prior to the passage of the PLRA are to be included in the amount of strikes under section 1915(g). See Keener v. Pennsylvania Bd. of Probation and Parole, 128 F.3d 143, 144-45 (3d Cir. 1997); see also Ibrahim v. District of Columbia, 208 F.3d 1032, 1036 (D.C. Cir. 2000); Welch v. Galie, 207 F.3d 130, 132 (2d Cir. 2000).
The Court takes judicial notice of court records and dockets of the federal courts. 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 reveal that Plaintiff has accumulated at least three strikes within the contemplation of 28 U.S.C. § 1915(g). Specifically, the dockets of the Western District of Pennsylvania reveal that Plaintiff has had the following actions dismissed as frivolous or dismissed for failure to state a claim: Cruz v. Allegheny County Jail, et al., No. 2:21-cv-388 (W.D. Pa. June 30, 2021) (dismissed for failure to state a claim); Cruz v. Torrence State Hospital, et al., 2:21-cv-418 (W.D. Pa. June 30, 2021) (dismissed for failure to state a claim); Cruz v. Pennsylvania State Police, et al., No. 2:21-cv-722 (W.D. Pa. July 9, 2021) (dismissed for failure to state a claim); Cruz v. Allegheny County Courthouse, et al., No. 2:21-cv-723 (W.D. Pa. October 27, 2021) (dismissed as frivolous).
The undersigned finds that Plaintiff has at least 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.
Plaintiff's Complaint appears to concern the termination of his social security benefits an allegation that Defendants wrongfully failed to reinstate his them. Although his allegations are
somewhat confusing, the undersigned does not find that any of them amount to imminent danger of serious physical injury. Therefore, Plaintiff is barred from proceeding in this lawsuit in forma pauperis under 28 U.S.C. § 1915(g) and this case should remain administratively closed until Plaintiff pays the full $402.00 filing fee.
III. CONCLUSION
For the foregoing reasons, 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 remain administratively closed until such time that Plaintiff pays the full $402.00 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, Plaintiff is allowed fourteen (14) days from the date of service of a copy of this Report and Recommendation to file objections. Failure to file timely objections will constitute a waiver of any appellate rights.