Opinion
Civil Action No. 2: 20-cv-0070
04-14-2020
DWAYNE L. RIECO, Plaintiff, v. C/O JOHNSTON, et al., Defendants.
United States District Judge Arthur J. Schwab REPORT & RECOMMENDATION
I. Recommendation
For the following reasons, it is respectfully recommended that Plaintiff's Motion for Leave to Proceed In Forma Pauperis (ECF No. 5) be denied in accordance with 28 U.S.C. § 1915(g) and that this action be dismissed without prejudice to Plaintiff reopening it by paying the full statutory and administrative filing fees, totaling $400.00.
II. Report
A. Discussion
As this Court has noted on many occasions, Plaintiff, Dwayne L. Rieco ("Rieco"), is a prodigious federal court litigant, who has had at least three prior lawsuits dismissed either as frivolous or on the grounds that the lawsuit failed to state a claim upon which relief could be granted. A recurring theme in his many lawsuits is a continuing cycle of conflict between Rieco and the corrections officers. It is common for Rieco to allege that the corrections officers make verbal threats to him, contaminate his food with urine, expose him to dangerous dust particles, and radon and methane gases, and deny him pens, stationery, and grievance forms in an attempt to deny him access to courts. In fact, just recently in Civil Action No. 19-cv-1136, Rieco alleged that a number of inmates and corrections officers were causing him to be exposed to dust particles, and interfering with his access to courts by denying him pens, grievance forms and stationery, and
by gassing him inside his confined air space cell causing him serious bronchial injuries with radon and methane gasses forced through the porous concrete floors and walls by pipelines attached to a tank that contains human wastes below the building . . . .Rieco v. McCreary, Civil Action No. 19-cv-1136. In that case, on February 25, 2020, Rieco's motion for leave to proceed in forma pauperis was denied without prejudice as the allegations in the complaint were found to be fanciful, fantastic, and/or delusional. ECF No. 18.
While Civil Action No. 19-cv-1136 was pending, Rieco filed the instant lawsuit, which contains similar, if not identical, allegations, to many of the allegations raised in Civil Action No. 19-cv-1136. The original complaint named two defendants, C/O Johnston and C/O Lewis, and contained a variety of allegations, including the recurrent themes that Defendants have denied him pens, stationery, and grievance forms in an attempt to interfere with his access to courts, the guards are threatening him, and he is being exposed to dangerous gases. (ECF No. 1). Upon screening the complaint as required by 28 U.S.C. § 1915A, the undersigned concluded that many of the allegations did not support a showing of imminent danger and that other allegations were vague inasmuch as Rieco did not state the dates the alleged unconstitutional acts occurred or provide any factual information about the allegations from which a determination of imminent danger could be made. Accordingly, the Court concluded that the allegations of the complaint were not enough to satisfy the imminent danger requirement. However, the Court provided Rieco with an opportunity to file an amended complaint to cure the noted deficiencies. (ECF No. 7).
In response to that Order, Rieco submitted an amended complaint (ECF No. 10) in which he now names 9 defendants: the original two defendants, Johnston and Lewis, and seven additional defendants, all of whom appear to be employed at SCI-Greene, the facility where Rieco is currently housed. As with his original complaint, he alleges that the corrections officers have threatened "to take Plaintiff's life for his rape conviction;" that he is breathing asbestos dust through his ventilation which "would cause him mesothelioma" and that the asbestos dust particles were put in his cell on many dates, but specifically on "12-16-19, 12-27-19, 12-30-19;" that in attempt to deny him access to courts Defendants continue to refuse to provide Plaintiff with a pen, stationery, and grievance forms; and that "inmates are urinating on their floors in their cells and smearing feces as well and this methane toxicant vapor caused Plaintiff severe breathing complications, headaches, sore throats and they refused to pull them out to sanitize them and their cells and Plaintiff was in fear for his life and limb." He also contends that Defendants have improperly handled his grievances. And in a passing reference he contends that corrections officers refuse him sick calls slips and requests to staff to seek medical care.
Plaintiff seems to be arguing that because he did not have a pen or paper, he was not able to file objections to the Report and Recommendation in Civil Action No. 19-cv-1136. As Judge Arthur J. Schwab noted in his Order of February 5, 2020, "[t]his is a clear pattern of Plaintiff. It is not unusual for Plaintiff in his cases to routinely miss deadlines and then complain that he did not have stationery and pens or offer some other unsubstantiated excuse. In this case, Plaintiff is advised that his time would have been better spent preparing objections to the Report and Recommendation, rather than filing the instant Notice." See Civil Action No. 19-1136, ECF No. 18.
B. Discussion
Rieco does not deny that he has three strikes and implicitly acknowledges that the allegations of his amended complaint must satisfy the imminent danger requirement of 28 U.S.C. § 1915(g). As noted supra, the allegations of the instant amended complaint repeat the recurrent themes that are found in Rieco's numerous lawsuits, and in particular, repeat the allegations contained in his complaint filed in Civil Action No. 19-cv-1136. For these reasons, the undersigned incorporates the ratio decidendi applied in Reico v. McCreary, Civil Action No. 19-cv-1136, and concludes that Rieco's allegations are insufficient to satisfy the imminent danger requirement of 28 U.S.C. § 1915(g). Rieco's allegations that Defendants are trying to murder him, are exposing him to asbestos dust, and radon and methane gases are fanciful, fantastic, and/or delusional. His allegations that Defendants are interfering with his access to courts is not supported by Court records nor do such allegations establish that Rieco is in imminent danger of serious physical harm. And his allegation that he has been denied sick call slips and requests to staff to seek medical care is a passing reference. Notably, the amended complaint contains no allegation that he was denied medical treatment for any serious medical condition based on Defendants' alleged conduct.
III. Conclusion
Based on the discussion above, it is respectfully recommended that Plaintiff's Motion for Leave to Proceed in forma pauperis (ECF No. 5) be denied in accordance with 28 U.S.C. § 1915(g) and that this action be dismissed without prejudice to Plaintiff reopening it by paying the full statutory and administrative filing fees, totaling $400.00.
Plaintiff is permitted to file Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, Plaintiff, because he is a non-electronically registered party, may file objections to this Report and Recommendation by May 4, 2020. Plaintiff is cautioned that failure to file Objections within this timeframe "will waive the right to appeal." Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Dated: April 14, 2020
/s Cynthia Reed Eddy
Cynthia Reed Eddy
Chief United States Magistrate Judge cc: DWAYNE L. RIECO
HU-2494
SCI Greene
175 Progress Drive
Waynesburg, PA 15370
(via U.S. First Class Mail)