Opinion
Civil Action 1:22-CV-00900
07-25-2022
PHILIP E. RAMSEY, Plaintiff, v. AMTRAK, Defendant.
(CONNER, J.)
REPORT AND RECOMMENDATION
KAROLINE MEHALCHICK CHIEF UNITED STATES MAGISTRATE JUDGE
On June 8, 2022, Plaintiff Philip E. Ramsey (“Ramsey”), proceeding pro se, filed a civil rights action pursuant to 42 U.S.C. § 1983 (Doc. 1), together with a motion for leave to proceed in forma pauperis. (Doc. 2). On June 28, 2022, the undersigned ordered Ramsey to show cause as to why the dismissal of three of his previous civil rights actions should not be considered strikes against him per the terms of the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(g), or, alternatively, how Ramsey was under imminent danger of serious physical injury at the time the instant complaint was filed. (Doc. 6). As of the day of this Order, Ramsey has declined to address the applicability of the three strikes rule under the PLRA. For the following reasons, it is respectfully recommended that Ramsey's motion for leave to proceed in forma pauperis be denied in accordance with 28 U.S.C. § 1915(g), and that this action be dismissed without prejudice until such time that Ramsey pays the full $402.00 filing fee. (Doc. 2).
I. Discussion
Ramsey initiated this action by filing a complaint and a motion for leave to proceed in forma pauperis on June 8, 2022. (Doc. 1; Doc. 2). Upon review of Ramsey's previous filings, however, the undersigned finds that Ramsey has accumulated three “strikes” and may not proceed in forma pauperis absent a showing of imminent danger. See 28 U.S.C. § 1915(g).
The PLRA includes a “three strikes” rule, “which limits a prisoner's ability to proceed [in forma pauperis] if the prisoner abuses the judicial system by filing frivolous actions.” Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir. 2001) (en banc); 28 U.S.C. § 1915(g). The pertinent part of the 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 Third Circuit has further described the appropriate standard for evaluating the accrual of “strikes” under 28 U.S.C. § 1915(g) as follows:
[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).
However, a dismissal for failure to state a claim does not constitute a “strike” for the purposes of 1915(g) “unless it is a dismissal with prejudice.” Millhouse v. Heath, 866 F.3d 152, 161 (3d Cir. 2017)). In addition, a “strike” takes effect once an action is dismissed on the grounds enumerated in Byrd, “even if the dismissal is the subject of an appeal.” See Coleman v. Tollefson, 135 S.Ct. 1759, 1763 (2015); see also Parker v. Montgomery Cty. Corr. Facility/Bus.Off. Manager, 870 F.3d 144, 149-50 (3d Cir. 2017). Moreover, the burden rests with the plaintiff to prove his or her entitlement to in forma pauperis status. See Reid v. Ebbert, No. 1:16-CV-01403, 2016 WL 6635931, at *2 (M.D. Pa. Nov. 8, 2016). 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).
Upon consideration of the disposition of Ramsey's previous filings, the undersigned finds that Ramsey has accumulated at least “three strikes” within the contemplation of 28 U.S.C. § 1915(g). The strikes Ramsey has accumulated are the following:
1. Ramsey v. Jackson, No. 1:18-CV-1294, 2020 WL 618647, at *1 (M.D. Pa. Feb. 10, 2020) (dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i));
2. Ramsey v. Soc. Sec'y Admin., No. 1:19-CV-00315 (M.D. Pa. Apr. 10, 2019), ECF No. 7 (dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and Fed.R.Civ.P. 8); and
3. Ramsey v. Nate, No. 1:18-CV-0643, 2018 WL 2322570, at *1 (M.D. Pa. May 22, 2018) (dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) and Fed.R.Civ.P. 8). The undersigned finds that Ramsey's three prior filings all constitute strikes for the purposes of § 1915(g).
As such, in order to proceed in forma pauperis, Ramsey must allege facts showing that he was in imminent danger of serious physical injury at the time he filed the complaint. See Abdul-Akbar, 239 F.3d at 315 (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, 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 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, 135 S.Ct. at 1763 (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 this case, the complaint does not contain allegations that indicate Ramsey is in imminent danger of any serious physical injury. See (Doc. 1). In the complaint, Ramsey asserts that “Officer OTT” at the Amtrak Station in Harrisburg, Pennsylvania, harassed and conspired against him in violation of his constitutional rights. (Doc. 1, at 2). As relief, Ramsey seeks “proper adjudication/prosecution.” (Doc. 1, at 2). Ramsey has plainly failed to allege any imminent danger of serious physical injury on June 8, 2022, the date he filed his complaint. The imminent danger exception is to provide a “safety valve for the “three strikes” rule to prevent impending harms, not those harms that had already occurred.” Abdul-Akbar, 239 F.3d at 315. Therefore, Ramsey 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 Ramsey pays the full $402.00 filing fee. See Malarik v. Beaver Cty. Jail Admin., No. 21-CV-194, 2021 WL 965813, at *2 (W.D. Pa. Mar. 1, 2021), report and recommendation adopted, 2021 WL 965356 (W.D. Pa. Mar. 15, 2021) (denying motion to proceed in forma pauperis because plaintiff accumulated three strikes and was not in imminent danger of serious physical injury, and dismissing action until plaintiff paid full filing fee); see also Brown v. City of Phila., 331 Fed.Appx. 898 (3d Cir. 2009) (finding that the inmate demonstrated a pattern of abusing judicial process by repeatedly filing frivolous actions and affirming the district court's order dismissing the complaint pursuant to § 1915(g)); Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (“the proper procedure is for the district court to dismiss the complaint without prejudice when it denies the prisoner leave to proceed in forma pauperis pursuant to the three strikes provision of § 1915(g). The prisoner cannot simply pay the filing fee after being denied in forma pauperis. He must pay the filing fee at the time he initiates the suit.”) (emphasis in original).
II. Recommendation
Based on the foregoing reasons, it is respectfully recommended that Ramsey's motion for leave to proceed in forma pauperis (Doc. 2) be DENIED in accordance with 28 U.S.C. § 1915(g), and that this action be dismissed without prejudice until such time that Ramsey pays the full $402.00 filing fee.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated July 25, 2022. Any party may obtain a review of the Report and Recommendation pursuant to 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.