Opinion
Civil Action No. 18-1440
10-31-2018
ROBERT WASHINGTON, Plaintiff, v. SUPERINTENDENT LINK, SUPERINTENDENT GILMORE, TRACY SHAWLEY, and KERI MOORE, Defendants.
Judge Nora Barry Fischer/Magistrate Judge Maureen P. Kelly Re: ECF No. 1 REPORT AND RECOMMENDATION
I. RECOMMENDATION
It is respectfully recommended that the Plaintiff's Request to Proceed In Forma Pauperis, ECF No. 1, be denied as he has acquired three strikes and may not be granted leave to proceed in forma pauperis ("IFP").
II. REPORT
Robert Washington ("Plaintiff") is a prisoner, currently incarcerated in the State Correctional Institution at Greene, assigned inmate Number GJ-2069, 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, he has acquired "three strikes," in contravention of 28 U.S.C. § 1915(g), and cannot proceed IFP in the present case.
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) Washington v. Phil. Police, No. 13-cv-897 (E.D. Pa. 3/25/2013) ECF No. 4 (Order dismissing complaint for failure to state a claim upon which relief can be granted); 2) Washington v. Phil. Police, No. 13-1976 (3d Cir. Order filed 7/22/2013 dismissing appeal as frivolous); and 3) Washington v. Northumberland County, No. 10-cv-2080 (M.D. Pa. 10/29/2010) ECF No. 7 (Order dismissing complaint for failure to state a claim upon which relief can be granted). 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 lost his commissary property and also lost his Casio wrist watch and that some of the Defendants failed to rectify this loss of his property by accepting and acting on his grievances and grievance appeals. The alleged violations apparently occurred from roughly July, 2017 to November, 2017. ECF No. 1-2 ¶¶ 15 - 21. The Complaint fails to allege any danger of physical injury, yet alone, danger of physical injury that is imminent. Hence, the Complaint is devoid of any allegations that would permit Plaintiff who has three strikes to proceed IFP. Because Plaintiff herein has failed to allege anything that would permit him 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.
III. CONCLUSION
For the reasons set forth herein, the IFP Motion should be denied because Plaintiff has three strikes and nothing in the Complaint alleges imminent risk of serious physical injury. 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: October 31, 2018
Respectfully submitted,
/s/Maureen P. Kelly
MAUREEN P. KELLY
UNITED STATES MAGISTRATE JUDGE cc: The Honorable Nora Barry Fischer
United States District Judge
ROBERT WASHINGTON
GJ 2069
SCI Greene
175 progress Dr.
Waynesburg, PA 15370