Opinion
Civil Action No. 18-1593
12-07-2018
ADAM GRIFFEY, Plaintiff, v. WESTMORELAND COUNTY PRISON, Defendant.
Judge David S. Cercone/Magistrate Judge Maureen P. Kelly REPORT AND RECOMMENDATION
I. RECOMMENDATION
It is respectfully recommended that the Plaintiff's Application for Leave to Proceed In Forma Pauperis, ECF No. 1, be denied.
II. REPORT
Adam Griffey, ("Plaintiff") is a prisoner, currently incarcerated in the State Correctional Institution at Camp Hill, who has previously filed several lawsuits, which were dismissed for failure to state a claim upon which relief can be granted. As a consequence, he has acquired "three strikes," in contravention of 28 U.S.C. § 1915(g), and cannot proceed in forma pauperis ("IFP") in the present case.
It is a plaintiff's burden to prove entitlement to IFP status. See White v. Gregory, 87 F.3d 429, 430 (10th Cir. 1996); New Assessment Program v. PNC Corp., No. Civ. A. 95-6059, 1995 WL 592588, at *1 (E.D. Pa. Oct. 3, 1995); In re Lassina, 261 B.R. 614, 618 (E.D. Pa. 2001) ("The applicant bears the burden of proving her entitlement to IFP relief by a preponderance of the evidence.").
This Court takes judicial notice of court records and dockets of the federal courts located in the Commonwealth of Pennsylvania as well as those of the United States Court of Appeals for the Third Circuit. DiNicola v. DiPaolo, 945 F. Supp. 848, 854 n.2 (W.D. Pa. 1996) (court is entitled to take judicial notice of public records). A review of the electronic dockets of these courts reveals that Plaintiff has accumulated at least "three strikes" within the contemplation of 28 U.S.C. § 1915(g) which provides in relevant part that:
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 is 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.
In the instant case, Plaintiff is a "prisoner" within the meaning of 28 U.S.C. § 1915(g). Plaintiff's three strikes are as follows: 1) Griffey v. Colecchia, No. 2:07-cv-1492 (W.D. Pa. ECF No. 9, opinion dismissing case for failure to state a claim, filed on 1/28/2008); 2) Griffey v. Colechia, No. 2:07-cv-1457 (W.D. Pa. ECF No. 13, opinion dismissing case for failure to state a claim filed on 1/28/2008); 3) Adam Griffey v. Rios, No. 7:07-cv-207 (E.D. Kentucky, ECF No. 12, opinion dismissing Complaint for failure to state a claim as to Eighth Amendment claim with prejudice and as to First Amendment claim without prejudice). Accordingly, because Plaintiff has at least three strikes, he may not proceed IFP. Furthermore, it is noted that Plaintiff has not alleged anything in the instant Complaint that would merit the grant of IFP even in those cases of prisoners who have three strikes.
The term prisoner as used in Section 1915 means "any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program." 28 U.S.C. § 1915(h).
We take judicial notice of the fact that Plaintiff was previously convicted in this Court in the case of USA v. Griffey, 2:00-cr-00102-WLS-2 (W.D. Pa.). We further note that Plaintiff's supervised release was transferred to Ohio and that he subsequently was found to have violated his supervised release. USA v. Griffey, No. 1:04-cr-0081-SJD-1 (S.D. Oh.). As a consequence of his federal convictions, Plaintiff came to be incarcerated in the United States Penitentiary at Big Sandy in Kentucky. --------
Plaintiff's Complaint alleges only that Westmoreland County Prison, where Plaintiff was incarcerated, failed to timely release Plaintiff after the expiration of his sentence for which he was incarcerated. More specifically, Plaintiff's factual allegations are that: "Westmoreland County Prison held me from 6-28-17 to 7-12-17[;] past my maximum incarceration day for 15 days. During which my son-daughter[']s brother died. I missed everything the funeral and all." ECF No. 1-2 ¶ IV. C.
The Complaint fails to allege any danger of physical injury, yet alone, danger of physical injury that is imminent. While Plaintiff filed a supplement, ECF No. 3, in which he alleges that he has mental disabilities and that he does not really comprehend anything, such allegations do not demonstrate that he is in imminent danger now from any action or inaction on the part of Westmoreland County Prison, from which he was apparently released over one year ago. Umberger v. Gillespie, CV 16-52, 2016 WL 4367550, at *2 (W.D. Pa. July 19, 2016), report and recommendation adopted, CV 16-52, 2016 WL 4264497 (W.D. Pa. Aug. 12, 2016) ("It is on this ground [of any danger having passed] that Plaintiff fails to carry his burden because Plaintiff complains of actions taken by the Defendants from roughly June, 2015, when he was arrested and shortly thereafter transferred to the Allegheny County Jail ('ACJ'), until October 2, 2015, when he was extradited to Virginia. However, he did not file the instant case until, at the earliest, January 6, 2016, when he signed his original Complaint. ECF No. 1-1 at 8. It is clear that after Plaintiff was transferred out of state, he was no longer in imminent risk of serious physical injury at the hands of the Defendants, all of whom are located in Allegheny County.") (footnote omitted). See also McGore v. Lutz, No. No. 09-13031, 2009 WL 2488101, at *2 (E.D. Mich., Aug. 11, 2009) ("The events giving rise to Plaintiff's complaint, i.e., the alleged failure to change his cell following a fellow inmate's threats in 2007 and the alleged verbal harassment in 2008, do not pose an imminent danger of serious physical injury, particularly given that Plaintiff has been transferred to another prison. Plaintiff has thus failed to show that he falls within the exception to the three-strikes rule."); Gamble v. Maynard, No. 9:06-CV-1543, 2008 WL 150364, at *5 (N.D.N.Y. Jan.14, 2008) ("While plaintiff's complaint intimates that the matter was not an isolated incident [of assault by correctional officers], there is nothing in his complaint, particularly in view of the fact that he is no longer incarcerated at the facility at which the alleged assaults occurred, having since been transferred to the Southport Correctional Facility, to demonstrate that he is in imminent danger of serious physical injury.").
Because Plaintiff herein has failed to allege anything that would permit him to proceed IFP, the IFP motion should be denied. If the District Court adopts this Report and Recommendation, Plaintiff, of course, may thereafter pay the entire filing fee within a time certain or face dismissal of the Complaint for failure to prosecute.
III. CONCLUSION
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2. Date: December 7, 2018
Respectfully submitted,
/s/Maureen P. Kelly
MAUREEN P. KELLY
UNITED STATES MAGISTRATE JUDGE cc: The Honorable David S. Cercone
United States District Judge
ADAM GRIFFEY
NJ-8389
SCI Camp Hill
USP Big Sandy
P.O. Box 200
Camp Hill, PA 17001