Opinion
3:23-cv-315-KAP
06-04-2024
EARNEST SCOTT, Jr., Plaintiff v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS, et al., Defendants
REPORT AND RECOMMENDATION
Keith A. Pesto, United States Magistrate Judge
Recommendation
I recommend that the complaint be dismissed for failure to prosecute. This is being filed as a recommendation because pre-service dismissal is appropriate, and it would be wasteful to proceed with this case to determine whether all parties would consent to Magistrate Judge jurisdiction.
Report
Plaintiff is a serial filer of inmate complaints who was formerly at S.C.I. Houtzdale in this district and is now at S.C.I. Huntingdon, in the Middle District of Pennsylvania. Plaintiff is now a three-strikes litigant under the Prison Litigation Reform Act's three strikes provision, 28 U.S.C.§ 1915(g). See e.g. Scott v. Department of Corrections, No. 3:24-cv-335-KM, ECF No. 9 (M.D.Pa. April 2, 2024)(Mehalchick, J., denying plaintiff leave to proceed in forma pauperis).
I administratively closed this matter on April 9, 2024, ECF no. 6, advising plaintiff that it would remain administratively closed until plaintiff pays the filing fee, or files objections and convinces a district judge that he “is,” that is, has shown he is “under imminent danger of serious physical injury” when he filed this complaint. 28 U.S.C.§ 1915(g); Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir.2001) (en banc). To fulfill that “imminent danger” requirement, plaintiff must demonstrate an adequate nexus between the claims he seeks to pursue in this complaint and the imminent danger he alleges. See Ball v. Hummel, 577 Fed.Appx. 96 (3d Cir. 2014), citing Pettus v. Morgenthau, 554 F.3d 293 (2d Cir.2009). Since I find that plaintiff does not allege any such nexus, if plaintiff does not, within the fourteen-day time set by 28 U.S.C.§ 636(b)(1) to file written objections to my order, either pay the filing fee or file objections showing an imminent danger of serious physical injury, I will recommend that the complaint be dismissed for failure to prosecute.
Plaintiff did not file objections or pay the filing fee. On May 31, 2024, plaintiff filed a pleading dated May 28, 2024 and styled “Plaintiff's Show Cause Motion of Imminent Danger and Nunc Pro Tunc Motion For Reconsideration to File Show of Cause” with the conclusory assertion that he had “demonstrated that he was in Imminent Danger, ” ECF no. 7 at ¶5.
Because an unsupported assertion, even a capitalized and underlined one, is not a showing, the complaint must be dismissed without prejudice to plaintiff paying the full filing fee in advance. The six-factor analysis of Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863, 868 (3d Cir.1984) and Hildebrand v. Allegheny County, 923 F.3d 128, 132 (3d Cir.2019), is superfluous because there is a statutory command not to allow serial filers of meritless complaints further use of in forma pauperis status unless they can show imminent danger of serious physical injury.
Pursuant to 28 U.S.C.§ 636(b)(1), the parties are given notice that they have fourteen days to file written objections to this Report and Recommendation. Parties are advised that in the absence of timely and specific objections any appeal would be severely hampered or entirely defaulted. See EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir.2017)(describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).
Notice by ECF to counsel of record and by U.S. Mail to:
Ernest Scott, Jr. ND-3773
S.C.I. Huntingdon
1100 Pike Street
Huntingdon, PA 16652
The Pennsylvania Department of Corrections lists plaintiff's name as Ernest Scott and has returned envelopes addressed to Earnest Scott. Notwithstanding plaintiff's insistence that his name is spelled “Earnest” I am sending this in the form accepted by the PADOC.