Opinion
CIVIL 4:22-CV-0016
06-23-2022
LUIS NIEVES, Plaintiff v. VITO TIM GEROULO et al., Defendants
MANNION, D.J.
REPORT & RECOMMENDATION
WILLIAM I. ARBUCKLE, U.S. MAGISTRATE JUDGE
I. INTRODUCTION
The Prison Litigation Reform Act (“PLRA”) seeks to stem the number of frivolous lawsuits from prisoners. Towards that goal, the Act places a limit on the number of frivolous civil actions an indigent prisoner can pursue. Luis Nieves has hit this limit. Thus, all future lawsuits, including this one, falls under the “three-strikes rule” of the PLRA. Accordingly, it is RECOMMENDED that Plaintiff's Motion for Leave to Proceed In Forma Pauperis be DENIED, and because Plaintiff has not paid the filing fee, his case be DISMISSED, and the Clerk of Court be DIRECTED to close this case. However, if Plaintiff pays the full filing fee within 14 days of this Report and Recommendation, his case should be allowed to proceed.
II. BACKGROUND & PROCEDURAL HISTORY
On January 4, 2022, Plaintiff initiated the above-captioned civil rights actionagainst three defendants: “Lackawanna County Judge Vito Gerollo, Lackawanna County Prison Warden Tim Betti, and Head of Grievance Department, Donna Varner.” (collectively, “Defendants”). (Doc. 1, ¶ II(B)). In his Complaint, Plaintiff alleges he discovered “an intrapment [sic] scandal cover up.” (Id. at ¶ III(A)). In essence, Plaintiff claims that Defendants, the District Attorney's Office, various police officers, are all friends, and some or all of these individuals “talk to prisoners attorney in the parking lot of the county prison before coming to see prisoners” and this malfeasance negatively influenced Plaintiff's state court sentence. (Id. at ¶ III(B)-(C)). He further claims that the “Grievance Department covers up officials who refuse to investigate these matters.” (Id.). Plaintiff also filed letters to the Court, one of which alleges that his sentencing judge, Vito Gerollo, miscalculated, or misapplied his proper sentence, after considering good time behavior. (Doc. 9).
Plaintiff used a form Complaint to start his civil action. In the Complaint, he checked the Federal Torts Claim Act box as the basis of his Complaint. The FTCA only applies to federal actors, and all Defendants are state actors. Later, he says that he is suffering from a violation of his Constitutional rights. Because of the leeway given to pro se filers, I will construe this Complaint as a civil rights action under 42 U.S.C. § 1983.
If Plaintiff is challenging the legality of his incarceration, he should file a habeas petition in state court.
As relief, Plaintiff requests that neutral investigators, such as FBI agents, arrive, presumably to investigate his claims. (Id. at ¶ VI). In the alternative, he asks that the Court grant hearings of all his past filed civil cases. (Id.). He asks the hearing to be done before November 14, 2023 and asks that the Court appoint him an attorney. (Id.).
Plaintiff did not file a in forma pauperis (“IFP”) motion or pay the filing fee when he filed his Complaint. The Court issued an administrative order directing Plaintiff to submit a IFP motion or to pay the filing fee. (Doc. 3). On January 25, 2022, Plaintiff submitted a certified in forma pauperis motion. (Doc. 7).
III. LEGAL STANDARD
The Prison Litigation Reform Act (“PLRA”) provides that:
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.28 U.S.C. § 1915(g). The above-quoted language is often referred to as the “three strikes” rule. This rule prohibits any prisoner who has already filed three qualifying “strikes” from filing new federal lawsuits in forma pauperis unless he or she is in imminent danger of serious physical injury. Before denying a prisoner's request for leave to proceed in forma pauperis under the three strikes rule, the Court should determine: (1) whether the prisoner has accrued three qualifying strikes; and (2) whether the imminent danger exception applies.
With respect to the accrual of “strikes” under the rules, the Third Circuit has explained that:
[A] strike under § 1915(g) will accrue only if the entire action or appeal is (1) dismissed explicitly because it is "frivolous," "malicious," or "fails to state a claim" or (2) dismissed pursuant to a statutory provision or rule that is limited solely to dismissal for such reasons, including (but not necessarily limited to) 28 U.S.C. §§ 1915A(b)(1), 1915(e)(2)(B)(i), 1915(e)(2)(B)(ii), or Rule 12(b)(6) of the Federal Rules of Civil Procedure.Byrd v. Shannon, 715 F.3d 117, 126 (3d Cir. 2013). “A strike-call under Section 1915(g) . . . hinges exclusively on the basis for the dismissal, regardless of the decisions prejudicial effect.” Lomax v. Ortiz-Marquez, 140 S.Ct. 1721, 1724-1725, 207 L.Ed.2d 132 (2020).
When deciding whether a prisoner meets the “imminent danger” exception to the three strikes rule, a court examines the situation faced by the prisoner at the time the complaint is filed. Abdul-Akbar v. McKelvie, 239 F.3d 307, 313-314 (3d Cir. 2001). Past danger is not enough. Id. Although allegations of imminent danger must be evaluated in accordance with the liberal pleading standard applicable to pro se litigants, the Court need not credit “fantastic or delusional” allegations that "rise to the level or irrational or wholly incredible." Gibbs v. Cross, 160 F.3d 962, 96667 (3d Cir. 1998) (quotations omitted). Furthermore, when evaluating an allegation of imminent danger of serious physical injury, the court must determine whether the inmate has drawn "an adequate nexus between the claims he seeks to pursue and the imminent danger he alleges.” Pettus v. Morgenthau, 554 F.3d 293, 296 (2d Cir. 2009).
IV. DISCUSSION
A. PLAINTIFF HAS ACCRUED THREE STRIKES
Plaintiff is a frequent litigator in this court who is subject to the three strikes provision set forth in 28 U.S.C. § 1915(g). The three strikes rule is not retroactive and must be applied based on the number of strikes at the time of filing of the lawsuit in question. Prior to the filing of this Complaint on January 4, 2022, Plaintiff filed the following three cases which qualify as strikes under the PLRA:
(1) Luis Nieves v. State of Pennsylvania et al., No. 3:18-CV-1253 (M.D. Pa. Jan. 16, 2020) (case dismissed for “failure to state a claim upon which relief may be granted.”).
(2) Luis Nieves v. Warden et al., No. 3:19-CV-0507 (M.D. Pa. Oct. 28, 2019) (case dismissed for “failure to state a claim upon which relief may be granted.”).
(3) Luis Nieves v. Geroulo et al., No. 4:20-CV-0777 (M.D. Pa. Mar. 5, 2021) (case dismissed for “failure to state a claim upon which relief may be granted.”).
The aforementioned cases were explicitly dismissed for failure to state a claim and thus all constitute strikes under the PLRA. As all three cases were dismissed before Plaintiff filed this Complaint, Plaintiff cannot proceed in forma pauperis in this case.
B. PLAINTIFF IS NOT IN IMMINENT DANGER
Plainly, Plaintiff has not alleged that he is in any imminent danger of any kind. His only allegations involve an alleged conspiracy between judges, police, and defense attorneys. Plaintiff has not even described the goal of this conspiracy, let alone how this cabal is placing him in imminent danger. As Plaintiff has not alleged any imminent danger of serious physical injury, there is no nexus to evaluate between imminent harm and the claims being pursued. Accordingly, I find that Plaintiff has not met the imminent danger exception to the three strikes rule.
C. PLAINTIFF'S COMPLAINT SHOULD BE DISMISSED
As no filing fee was paid, it is recommended that Plaintiff's case be dismissed. However, if Plaintiff pays the filing fee within 14 days of this Report and Recommendation, his case should be allowed to proceed.
V. CONCLUSION
Accordingly, IT IS RECOMMENDED that:
(1) Plaintiff's Motion for Leave to Proceed In Forma Pauperis (Doc. 7) be DENIED.
(2) If Plaintiff tenders the full filing fee within 14 days of this Report and Recommendation, this case should be allowed to proceed.
(3) If Plaintiff has not paid the filing fee, Plaintiff's case be DISMISSED pursuant to 28 U.S.C. § 1915(g) because Plaintiff has accrued three “strikes” and has not demonstrated that he is imminent danger of serious physical injury; and
(4) The Clerk of Court be DIRECTED to CLOSE this case.
NOTICE OF RIGHT TO OBJECT
NOTICE IS HEREBY GIVEN that any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.