Opinion
Civil Action No. 21 - 194
03-01-2021
JAMES M. MALARIK, Plaintiff, v. BEAVER COUNTY JAIL ADMINISTRATION, et al., Defendants.
District Judge William S. Stickman
REPORT AND RECOMMENDATION
I. RECOMMENDATION
For the following 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 $402.00 filing fee.
II. REPORT
James M. Malarik ("Plaintiff") initiated this action by the filing of a Motion for Leave to Proceed in forma pauperis that was docketed at the above case number on February 9, 2021. (ECF No. 1.) Upon review of Plaintiff's previous filings, however, it appears that Plaintiff has accumulated three or more "strikes" and may not proceed in forma pauperis 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 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 of those courts reveal that Plaintiff has accumulated at least "three strikes" within the contemplation of 28 U.S.C. § 1915(g). The strikes Plaintiff has accumulated are the following.
The first strike is Malarik v. Pennsylvania Office of Attorney General/Bureau of Narcotic Investigation and Drug Control Agent James R. Embry, et al., No. 07-785 (W.D. Pa.), which was dismissed for failure to state a claim on November 7, 2007, in accordance with the Prison Litigation Reform Act ("PLRA"), 28 U.S.C. § 1915(e)(2)(B)(ii) and/or 28 U.S.C. § 1915A.
The second strike is Malarik v. Office of District Attorney of Beaver County, et al., No. 07-1499 (W.D. Pa.), which was dismissed with prejudice based on the defendants' absolute immunity on January 16, 2008, in accordance with the PLRA.
It is noted that the magistrate judge recommended that the case be dismissed because the defendants were entitled to absolute immunity and thus Plaintiff's allegations were insufficient to state a claim upon which relief may be granted. See No. 07-1499 (ECF No. 7, p.5.) The Court adopted the Report and Recommendation of the magistrate judge and dismissed the complaint with prejudice based on Plaintiff's failure to state a claim against the defendants' in light of their absolute immunity. See id. (ECF No. 10.) In Ball v. Famiglio, 726 F.3d 448 (3d Cir. 2013), the Third Circuit held that a "dismissal based on the immunity of the defendant, whether absolute or qualified, does not constitute a PLRA strike . . . unless a court explicitly and correctly concludes that the complaint reveals the immunity defense on its face and dismisses the . . . complaint under Rule 12(b)(6) or expressly states that the ground for the dismissal is frivolousness." Id. at 463. The undersigned finds that this case constitutes a strike since, in accordance with Ball, the Court specifically found that Plaintiff's complaint revealed the immunity defense on its face and dismissed it with prejudice because Plaintiff's allegations were insufficient to state a claim upon which relief could be granted under Rule 12(b)(6).
The third strike is Malarik v. Office of District Attorney of Beaver County, et al., No. 07-1500 (W.D. Pa.), which was dismissed with prejudice based on the defendants' absolute immunity on January 16, 2008, in accordance with the PLRA.
The undersigned finds that this case also constitutes a strike since, in accordance with Ball, the Court specifically found that Plaintiff's complaint revealed the immunity defense on its face and dismissed it with prejudice because Plaintiff's allegations were insufficient to state a claim upon which relief could be granted under Rule 12(b)(6). See No. 07-1500 (ECF No. 10.) --------
The fourth strike is Malarik v. Commonwealth of Pennsylvania-Office of District Attorney of Beaver County, No. 07-1501 (W.D. Pa.), which was dismissed with prejudice for failure to state a claim on March 17, 2008, in accordance with the PLRA.
The fifth strike is Malarik v. Commonwealth of Pennsylvania-Office of District Attorney of Allegheny County, No. 07-1502 (W.D. Pa.), which was dismissed with prejudice for failure to state a claim on March 17, 2008, in accordance with the PLRA.
The sixth strike is Malarik v. Port Authority Transit of Allegheny County, et al., No. 08-619 (W.D. Pa.), which was dismissed with prejudice for failure to state a claim on November 10, 2008, in accordance with the PLRA.
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.
The complaint in this case (ECF No. 1, pp.3-6) does not contain allegations that indicate Plaintiff is in imminent danger of any 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 be dismissed without prejudice until Plaintiff pays the full $402.00 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 $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.
Dated: March 1, 2021.
/s/ Lisa Pupo Lenihan
Lisa Pupo Lenihan
United States Magistrate Judge Cc: James M. Malarik
20-01343
Beaver County Jail
6000 Woodlawn Street
Aliquippa, PA 15001