Opinion
Civil Action No. 17-93
03-07-2017
ANTHONY TUSWEET SMITH, Plaintiff, v. SECRETARY OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS, SCI GREENE F-UNIT MANAGER, SCI GREENE CAPTAIN SHRADER, SCI GREENE RHU LT. MORRIS, SCI GREENE RHU SGT. TIKEY, SCI GREENE C/O ARBABELL, SCI GREENE C/O CARTER, SCI GREENE C/O HOLLOWOOD, SCI GREENE C/O LEWIS, SCI GREENE C/O RIDDLE, SCI GREENE C/O RECICHAR, Defendants.
Chief Judge Joy Flowers Conti/Chief Magistrate Judge Maureen P. Kelly Re: ECF No. 3 REPORT AND RECOMMENDATION
I. RECOMMENDATION
It is recommended that the Motion for Leave to Proceed In Forma Pauperis ("the IFP Motion"), ECF No. 3, be denied for two independent reasons. First, Plaintiff has acquired at least three strikes and thus is not permitted to proceed in forma pauperis ("IFP") and his proposed Complaint does not reveal imminent risk of serious physical injury. Secondly, Plaintiff has more than sufficient funds in his inmate account pay the entire filing fee with substantial amounts remaining for his personal needs.
II. REPORT
Anthony Tusweet Smith ("Plaintiff"), is a prolific pro se litigant with a long history of filing prisoner civil rights suits and habeas petitions in the federal courts of Pennsylvania. Plaintiff is now incarcerated at the State Correctional Institution in Greene ("SCI-Greene").
A. Procedural History and Factual Allegations of the Complaint.
Pursuant to the prisoner mail box rule, Plaintiff filed this action on January 13, 2017, when he signed the original Motion for Leave to Proceed In Forma Pauperis (the "IFP Motion"). ECF No. 1 at 1. However, Plaintiff's original IFP Motion, ECF No. 1, was deficient. Accordingly, on January 26, 2017, the Court issued a Deficiency Order, directing Plaintiff to correct the deficiency and closing the case until he complied. ECF No. 2. On February 16, 2017, Plaintiff filed the present IFP Motion, ECF No. 3. Plaintiff seeks to pursue a prisoner civil rights suit under 42 U.S.C. § 1983. However because he has at least three strikes, he is barred from proceeding IFP unless the proposed Complaint, ECF No. 1-1, reveals imminent risk of serious physical injury. However, Plaintiff's proposed complaint only alleges issues concerning body cavity searches that he was required to undergo whenever he left his cell in the Restricted Housing Unit, which the Court notes, is done as a matter of policy, and which strip search(es) occurred in July 2016. Plaintiff also complains that as a result of his complaining about strip searches conducted by Defendant Corrections Sergeant Tikey, he was subsequently denied outside recreation for a period of about 90 days. In addition, Plaintiff complains that from August 12 to September 12, 2016, Sergeant Tikey gave Plaintiff the food tray with the "less proportioned meal" in retaliation for Plaintiff's filing of a grievance. ECF No. 1-1 at 3, ¶ IV.7. Plaintiff also claims that on September 3, 2016, he found mouse excrement on the bottom of the cereal portion of his food tray and then he informed the corrections officer who went to acquire a new food tray. Id, ¶ 9. Plaintiff claims that the alleged conduct reveals violations of his Fourth Amendment, Eighth Amendment and Fourteenth Amendment rights. Id. at 2, ¶ III.
B. Plaintiff Has at Least Three Strikes.
It is a plaintiff's burden to prove entitlement to IFP status. See White v. Gregory, 87 F.3d 429, 430 (10th Cir. 1996); New Assessment Program v. PNC Corp., No. Civ.A. 95-6059, 1995 WL 592588, at *1 (E.D. Pa. Oct. 3, 1995); In re Lassina, 261 B.R. 614, 618 (E.D. Pa. 2001) ("The applicant bears the burden of proving her entitlement to IFP relief by a preponderance of the evidence."). A plaintiff who has three strikes, bears the burden of showing that he is in "imminent danger of serious physical injury." Bullock v. Berrier, No. CIV.A. 15-1J, 2015 WL 5439207, at *3 (W.D. Pa. Sept. 15, 2015) ("it is for this Court to resolve the question of whether Plaintiff has carried his burden to show imminent danger of serious physical injury.") (footnote omitted).
In considering the pending IFP Motion, this Court takes judicial notice of court records and dockets of the federal courts. DiNicola v. DiPaolo, 945 F. Supp. 848, 854 n.2 (W.D. Pa. 1996) (court is entitled to take judicial notice of public records). A review of the electronic dockets of these federal courts reveals that Plaintiff has accumulated at least five "strikes" within the contemplation of 28 U.S.C. § 1915(g)2 which provides in relevant part that:
Abdul-Akbar v. McKelvie, 239 F.3d 307, 310 (3d Cir. 2001) (noting that 28 U.S.C. § 1915(g) is "popularly known as the 'three strikes' rule"), cert. denied, 533 U.S. 953 (2001).
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.
In this case, Plaintiff is a "prisoner" within the meaning of 28 U.S.C. § 1915(g).
The term prisoner as used in Section 1915 means "any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program." 28 U.S.C. § 1915(h). --------
The five strikes are as follows:
1) Smith v. Shoupe, No. 2:06-cv-831-JFC-FXC (W.D. Pa. ECF No. 41 (Report recommending grant of Motions to Dismiss for Failure to State a Claim), ECF No. 42 (Order adopting Report));Accordingly, Plaintiff may not proceed in forma pauperis unless he can show "imminent danger of serious physical injury."
2) Smith v. Terry McVerry, No. 2:07-cv-1440-NBF-FXC (W.D. Pa. ECF No. 7 (Report recommending complaint be dismissed pre-service per PLRA), ECF No. 9 (Order adopting Report));
3) Smith v. Thomas Hardiman, No. 2:07-cv-1441-NBF-FXC (W.D. Pa. ECF No. 7 (Report recommending complaint be dismissed pre-service per PLRA), ECF No. 9 (Order adopting Report));
4) Smith v. Nora Barry Fischer, No. 2:08-cv-40-JMM (W.D. Pa. ECF No. 3, Order dismissing complaint per PLRA);
5) Smith v. Nora Barry Fischer, No. 2:08-cv-41- JMM (W.D. Pa. ECF No. 3 Order dismissing complaint per PLRA).
C. The Complaint Fails to Show Imminent Danger of Serious Physical Injury.
"Imminent danger" of serious physical injury is measured at the time of the filing of the civil action. Abdul-Abkar v. McKelvie, 239 F.3d 307 (3d Cir. 2001) (imminent danger of physical injury must be assessed as of the time of filing the complaint).
In the proposed Complaint, Plaintiff complains of strip searches occurring in July 2016, the denial of outside yard recreation for about 90 days, and provision of less proportioned meals for at most a period of time spanning from approximately July 2016 to December 2016. The Court has no hesitancy in concluding that the Complaint fails to show any danger of serious physical injury, yet alone, physical injury that is imminent.
Because Plaintiff has failed to carry his burden to show that as of the filing of this lawsuit he was in imminent danger of serious physical injury, which would permit him to proceed IFP, the IFP motion should be denied.
D. Plaintiff has Sufficient Funds to Pay the Filing Fee.
Plaintiff's inmate account shows that he has more or less regular contributions of gifts over the past twelve months in amounts ranging from $110.00 to as much as $600.00. His inmate account statement also shows that Plaintiff had a high balance of $1653.99 as of January 29, 2017. ECF No. 3 at 4. Plaintiff initiated this action in January 2017, during which his account balance ranged from a high of $1653.99 to a low of $1543.99. Id.
Whether to grant or deny the IFP Motion is committed to the sound discretion of the District Court. See Cotto v. Tennis, 369 F. App'x 321, 322 (3d Cir. 2010) ("We review the denial of leave to proceed IFP for abuse of discretion."). In the sound exercise of our discretion and after reviewing the IFP Motion, we find that Plaintiff has not met his burden to show entitlement to IFP status.
The IFP Motion indicates that Plaintiff had a balance of $1575.71, as of February 6, 2017, the last date available from the inmate account statement. We judge Plaintiff to have sufficient funds to enable him to pay the $400.00 filing fee. Moreover, Plaintiff has not shown that paying the $400.00 filing fee would "force [him] to abandon what may be a meritorious claim in order to spare himself complete destitution." Cotto, 369 F. App'x at 322 (quoting Jones v. Zimmerman, 752 F.2d 76, 79 (3d Cir. 1985)).
III. CONCLUSION
For the reasons set forth herein, it is recommended that the pending IFP Motion be denied. If the District Court adopts this Report and Recommendation, Plaintiff, of course, may thereafter pay the entire filing fee within a time certain or face dismissal of the Complaint for failure to prosecute.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.
/s/Maureen P. Kelly
MAUREEN P. KELLY
CHIEF UNITED STATES MAGISTRATE JUDGE Date: March 7, 2017 cc: The Honorable Joy Flowers Conti
Chief United States District Judge
ANTHONY TUSWEET SMITH
EY9164
SCI Greene
175 Progress Drive
Waynesburg, PA 15370