Opinion
Civil Action No. 18-998
08-21-2018
LYNNE THOMPSON, Plaintiff, v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, PATRICIA VALAURI, PAROLE AGENT TAWNYA PEEK, NATE SIMON, LAURA STEDILA, and CHUCK ACKERMAN, Defendants.
Judge Arthur J. Schwab/Chief Magistrate Judge Maureen P. Kelly REPORT AND RECOMMENDATION
I. RECOMMENDATION
It is respectfully recommended that the Plaintiff's Application for Leave to Proceed In Forma Pauperis, ECF No. 1, be denied.
II. REPORT
Lynne Thompson, ("Plaintiff") is a prisoner, currently incarcerated in the State Correctional Institution at Cambridge Springs, who has previously filed several lawsuits, which were dismissed as frivolous or for failure to state a claim upon which relief can be granted. As a consequence, she has acquired "three strikes," in contravention of 28 U.S.C. § 1915(g), and cannot proceed in forma pauperis ("IFP") in the present case.
The Court takes judicial notice of the fact that Lynne Thompson is also known as "Lynne Lamar" and "Lynne L. Thompson."
http://inmatelocator.cor.pa.gov/#/ (site last visited 8/20/2018). See also Lynne Lamar Thompson v. Plum Boro Administration, No. 07CV26 (W.D. Pa. Jan. 10, 2007), ECF No. 2 (Report and Recommendation recommending denial of IFP status to "Lynne Lamar Thompson" and relying on cases filed by "Lynne Lamar").
The Complaint sets fort a Hardwood Road address for Plaintiff, ECF No. 1-1 at 1. However, the return address on the accompanying mailing envelope is SCI-Cambridge Springs. ECF No. 1-4.
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.").
This Court takes judicial notice of court records and dockets of the federal courts located in the Commonwealth of Pennsylvania as well as those of the United States Court of Appeals for the Third Circuit. 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 courts reveals that Plaintiff has accumulated at least "three strikes" within the contemplation of 28 U.S.C. § 1915(g) 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 the instant case, Plaintiff is a "prisoner" within the meaning of 28 U.S.C. § 1915(g). Plaintiff's three strikes are as follows: 1) Lamar v. Onyundo, No. 95-CV-568 (W.D. Pa. Apr. 13, 1995), ECF No. 4 (Report and Recommendation recommending dismissal of case as frivolous) and (May 24 1995), ECF No. 5 (Memorandum Order adopting Report and Recommendation); 2) Lamar v. McDaniels No. 95-CV-640 (W.D. Pa. Apr. 27, 1995), ECF No. 8 (Report and Recommendation recommending dismissal of case as frivolous) and (May 12, 1995), ECF No. 5 (Memorandum Order adopting Report and Recommendation); and 3) Lamar v. Commonwealth of Pennsylvania and Judge McDaniel, No. 97-CV-1566 (W.D. Pa. Apr. 17, 1998), ECF No. 16 (Report and Recommendation recommending grant of motions to dismiss for failure to state a claim), and (May 11, 1998), ECF No. 17 (Memorandum Order adopting Report and Recommendation). In fact, Plaintiff has more than three strikes. See also Lamar v. Packard, No. 01-CV-1333 (W.D. Pa. Aug. 3, 2001), ECF No. 3 (Memorandum Order dismissing complaint under 28 U.S.C. § 1915(d) for failure to state a claim); Lamar v. Attorney-at-law Robert Marcus, No. 02-CV-225 (W.D. Pa. Jan. 28, 2002), ECF No. 3 (Memorandum Order dismissing complaint under 28 U.S.C. § 1915(d) as frivolous). Moreover, the United States Court of Appeals for the Third Circuit has found that Plaintiff has three strikes against her. See, e.g., Thompson v. Plum Boro Admin., No. 07-2278 (3d Cir. May 1, 2007). Accordingly, because Plaintiff has at least three strikes, she may not proceed IFP. Furthermore, it is noted that Plaintiff has not alleged anything in the instant Complaint that would merit the grant of IFP even in those cases of prisoners who have three strikes.
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).
Plaintiff's Complaint alleges only that Defendants falsely lodged detainers against her, based on criminal cases which were no longer active, i.e., on cases where she had already reached her maximum sentence date, which had the effect of keeping her in the Allegheny County Jail illegally and that she is wrongfully being detained by means of a grand conspiracy against her. Plaintiff alleged that the date of the event is March 8, 2017. ECF No. 1-1 at 3.
The Complaint fails to allege any danger of physical injury, yet alone, danger of physical injury that is imminent. We note that the closest she may come is a conclusory allegation that she seeks "damages for not receiving proper medical attention as a result of Pennsylvania Board of Probation placing Lynne into the Allegheny County Jail as to where being denied proper life sustaining medication..." Id. at 20. We note that she made similar conclusory accusations in Thompson v. Bd. Of Probation and Parole, No. 16-cv-1161 (W.D. Pa. Oct. 16, 2017), ECF No. 70 (Order denying Motion for Release). We further note that Plaintiff is no longer housed in the Allegheny County Jail. Hence, the Complaint is devoid of any allegations that would permit her to proceed IFP.
Because Plaintiff herein has failed to allege anything that would permit her to proceed IFP, the IFP motion should be denied. If the District Court adopts this 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.
Plaintiff has also filed a "Motion for the Filing of In Forma Pauperis Due to the Court(s) [sic] Dismissal Without Proper Notification, Newly Discovered Evidence." ECF No. 2. Nothing in this filing demonstrates imminent danger of serious physical injury nor justifies the reopening of Thompson v. Bd. Of Probation and Parole, No. 16-cv-1161, which was dismissed for failure to state a claim and which is currently on appeal before the United States Court of Appeals for the Third Circuit, which is considering Plaintiff's IFP Motion in that Court. Thompson v. Pa. Bd. Of Probation, No. 18-1668 (3d Cir. filed June 6, 2018). --------
III. CONCLUSION
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. 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. Date: August 21, 2018
Respectfully submitted,
/s/Maureen P. Kelly
MAUREEN P. KELLY
CHIEF UNITED STATES MAGISTRATE JUDGE cc: The Honorable Arthur J. Schwab
United States District Judge
LYNNE THOMPSON
11 Hardwood Road
Pittsburgh, PA 15235
Lynne Thompson
OT 0636
SCI Cambridge Springs
451 Fullerton Avenue
Cambridge Springs, PA 16403