Opinion
Civil Action No. 19 - 412
04-29-2019
RICHARD HOLLIHAN, JR., Plaintiff, v. DR. KARL WILLIAMS, Defendant.
District Judge Marilyn J. Horan
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 without prejudice until such time that Plaintiff pays the full $400.00 filing fee.
II. REPORT
Plaintiff Richard Hollihan, Jr., an inmate in the Pennsylvania Department of Corrections, initiated this action with the submission of a Motion for Leave to Proceed in forma pauperis ("IFP") that was filed on April 11, 2019. (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 Third Circuit Court of Appeals has held that dismissals based on "frivolousness" 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). --------
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 Davis, et al., v. Hehman, et al., Civil Action No. 93-876 (E.D. Pa.), which was dismissed as legally frivolous by Order dated March 8, 1993. The second strike is Davis, et al. v. Morgan, et al., Civil Action No. 93-489 (W.D. Pa.), which was dismissed as legally frivolous by Order dated April 26, 1993. The third strike is Davis, et al. v. Becker, et al., Civil Action No. 94-1890 (E.D. Pa.), which was dismissed as legally frivolous by Order dated May 18, 1994. Additionally, Plaintiff accrued another strike at Hollihan v. Sobina, et al., Civil Action No. 94-130 (W.D. Pa.), which was dismissed as legally frivolous by Order dated June 7,1994.
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.
In his Complaint, Plaintiff asserts violations of his equal protection and due process rights based on the Defendant's denial of requests to provide him with his wife's autopsy report, toxicology report, photographs and other related records. Plaintiff states that these records are necessary to demonstrate his innocence for the crime of which he was convicted.
Plaintiff's allegations do not indicate imminent danger of any serious physical injury. Therefore, he is barred from proceeding in this lawsuit in forma pauperis under 28 U.S.C. § 1915(g) and this case should be dismissed without prejudice until Plaintiff pays the full $400.00 filing fee.
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 without prejudice 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, 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.
Dated: April 29, 2019.
/s/ Lisa Pupo Lenihan
Lisa Pupo Lenihan
United States Magistrate Judge cc: Richard Hollihan, Jr.
AJ-0676
SCI Somerset
1600 Walters Mill Road
Somerset, PA 15510-0002