Opinion
2:18-CV-1257
02-08-2019
NATHAN HOYE, Plaintiff, v. WARDEN HARPER, Defendant.
MEMORANDUM ORDER
This case was referred to United States Magistrate Judge Cynthia Reed Eddy for pretrial proceedings in accordance with the Magistrates Act, 28 U.S.C. §§ 636(b)(1)(A) and (B), and Local Rule of Civil Procedure 72.
On October 22, 2018, the Magistrate Judge issued a Report recommending that the Motion for Leave to Proceed in forma pauperis be denied as Plaintiff had not satisfied the imminent danger exception to the three strikes rule of 28 U.S.C. § 1915(g). (ECF No. 5). Plaintiff was served with the Report and Recommendation at his listed address of record and advised that written objections were due by November 8, 2018. On November 7, 2018, the Report and Recommendation was returned unopened to the Court with the following notation on the envelopes: "RTS. Temp. Release." (ECF No. 6). Upon inquiry, the Court was informed that Plaintiff had been transferred to Torrance State Hospital and was unable to file timely objections. On November 8, 2018, the Court sua sponte filed an Order granting Plaintiff an extension until December 10, 2018 (ECF No. 7), to file written objections to the Report and Recommendation.
On December 4, 2018, the Court was informed that Plaintiff remained in custody at Torrance State Hospital. The case was then statistically closed until such time as Plaintiff notified the Court of his return to Allegheny County Jail. (ECF No. 8). On January 3, 2019, Plaintiff notified the Court that he had been returned to Allegheny County Jail. (ECF No. 9). The case was reopened and Plaintiff was granted an extension until January 24, 2019, to file his written objections. (ECF No. 10). To date, Plaintiff has not filed any objections in this case nor has he sought an extension of time in which to do so.
After a review of the pleadings and documents this case, together with the Report and Recommendation, the Court finds that the Magistrate Judge made a sound recommendation. Allegations of imminent danger must be evaluated in accordance with the liberal pleading standard applicable to pro se litigations; however, the Court need not credit "fantastic or delusional allegations that "rise to the level of 'irrational or wholly incredible'." Gibbs v. Cross, 160 F.3d 962, 966-67 (3d Cir. 1988) (quotations omitted). The Court finds that Plaintiff's allegations that Warden Harper is trying to slowly kill him "rise to the level of irrational or wholly incredible." The following Order is entered:
The Motion for Leave to Proceed in forma pauperis is DENIED, and this action is dismissed without prejudice to Plaintiff's right to reopen it by paying the full statutory and administrative filing fees, totaling $400.00. The Report and Recommendation of the Magistrate Judge, dated October 22, 2018, hereby is ADOPTED as the Opinion of the District Court.
IT IS SO ORDERED this 8th day of February, 2019.
/s Nora Barry Fischer
Nora Barry Fischer
United States District Judge cc: NATHAN R. HOYE , 167618
Allegheny County Jail
950 2nd Avenue
Pittsburgh, PA 15219-3100