Opinion
Civil Action No. 2: 20-cv-0582
05-08-2020
DWAYNE L. RIECO, Plaintiff, v. C/O1 J. E. LEWIS, C/O1 JELLOTS, C/O1 PRICE, CAPTAIN KENNEDY, UNIT MANAGER RICHARDS, C/O3 TROUT, C/O3 MORRIS, CAPTAIN HINTMEYER; LAW LIBRARIAN GARDNER, C/O1 SMITH, and KAREN SOLOL, 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. 3) 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 sophisticated, serial litigator, who has had at least three prior lawsuits dismissed either as frivolous or because 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 himself and the correction officers. It is common for Rieco to allege that the correction officers make verbal threats to him, contaminate his food, expose him to dangerous dust particles, and radon and methane gases, and deny him access to courts.
In the instant complaint, signed by Rieco on April 13, 2020, he again raises many of the same allegations which have previously been found to lack merit: that his food is being removed from his "religious kosher meals," he has been served contaminated food, he is denied grievance forms, his right to access to courts has been interfered with, his "religious rights were violated by extortion," defendants have threatened to "bring the coronoavirus in to you," and he was issued a false misconduct. Two new allegations are made: (1) he was denied the addresses of the Governor and Pittsburgh area attorneys, which prevents him from reporting these abuses; and (2) on March 3, 2020, his hand was injured as a result of being subjected to excessive force by three correction officers.
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 above, many allegations of the instant complaint repeat the recurrent themes that are found in Rieco's numerous lawsuits. 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 cannot satisfy the imminent danger requirement of 28 U.S.C. § 1915(g). Rieco's allegations that Defendants are trying to murder him and have threatened to expose him to the coronavirus are fanciful, fantastic, and/or delusional. His allegations that Defendants are interfering with his access to courts, have failed to provide him with grievance forms, have failed to timely respond to his grievances, and have not provided him with mailing addresses fail to establish that Rieco is in imminent danger of serious physical harm.
Rieco's allegation that his hand was injured as a result of being subjected to excessive force on March 3, 2020, also fails to establish that he is in imminent danger of serious physical harm. "[A] prisoner may invoke the 'imminent danger' exception only to seek relief from a danger which is 'imminent' at the time the complaint is filed." Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir. 2001) (en banc). "By using the term 'imminent,' Congress indicated that it wanted to . . . prevent impending harms, not those harms that had already occurred." Id. at 312-15 (emphasis added). Plaintiff's injury to his hand has already occurred; there are no factual allegations from which this Court can conclude that Rieco faces any "impending" physical harm. The Court therefore finds that Rieco has not demonstrated the necessary imminent danger of serious physical injury to proceed in forma pauperis on his excessive force claim.
III. Conclusion
Accordingly, it is respectfully recommended that Plaintiff's Motion for Leave to Proceed in forma pauperis (ECF No. 3) 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 may 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 28, 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: May 8, 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)