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Nicholas v. Harrisburg Police Bureau

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


February 27, 2009

EDWARD JAMES NICHOLAS, PLAINTIFF
v.
HARRISBURG POLICE BUREAU, DONALD E. HEFFNER, INTERNAL REVENUE SERVICE, UNKNOWN INSURANCE COMPANY, DEFENDANTS

The opinion of the court was delivered by: (Judge Jones)

(Magistrate Judge Smyser)

REPORT AND RECOMMENDATION

The plaintiff, a Pennsylvania state prisoner proceeding pro se , commenced this action by filing a complaint in the United States District Court for the Eastern District of California. The plaintiff also filed an application for leave to proceed in forma pauperis . By an Order of Magistrate Judge Kimberly J. Mueller dated December 22, 2008, the case was transferred to this court. By an Order dated January 9, 2009, the case was referred to the undersigned magistrate judge for pre-trial management.

28 U.S.C. §1915(g) (commonly referred to as the three-strikes provision) provides:

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.

The plaintiff has filed at least four cases in this Court which have been dismissed as frivolous . See Nicholas v. Dauphin County Common Pleas, 3:CV-07-2218 (M.D.Pa. Dec. 21, 2007)(Vanaskie, J.); Nicholas v. Barker, 4:CV-06-1541 (M.D.Pa. Oct. 3, 2006)(Caputo, J.); Nicholas v. Evans , 4:CV-06-1414 (M.D.Pa. Aug. 21, 2006)(Jones, J.); Nicholas v. Heffner , 4:CV-06-1478 (M.D.Pa. Aug. 21, 2006)(Jones, J.). All of those cases were commenced by the plaintiff while he was incarcerated. The plaintiff is currently incarcerated and he was incarcerated when he commenced the instant action. See Doc.1-2. Thus, the plaintiff may not proceed in forma pauperis in this action unless he was under imminent danger of serious physical injury at the time he filed his complaint in this case. In this case the plaintiff's claims relate to a 1997 arrest and his subsequent incarceration. There is no allegation or indication that the plaintiff is in imminent danger of serious physical injury. Accordingly, pursuant to 28 U.S.C. § 1915(g), the plaintiff may not proceed in forma pauperis in this case.*fn1

By an Order dated January 22, 2009, we denied the plaintiff's application to proceed in forma pauperis and we ordered the plaintiff to pay, on or before February 23, 2009, the full $350.00 filing fee. We warned the plaintiff that if he does not pay the filing fee we will recommend that the case be dismissed.

On February 11, 2009, the plaintiff filed a document entitled "Request for Abeyance" in which he states that he does not have funds to pay the filing fee and he requests that court hold all proceeding until further notice. Because there is no basis to stay this case indefinitely, by a separate order we have denied the plaintiff's request for abeyance.

The plaintiff has not paid the filing fee and he can not proceed in forma pauperis . Accordingly, it is recommended that the case be dismissed.

J. Andrew Smyser Magistrate Judge

NOTICE

Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3 of the Rules of Court, M.D.Pa., which provides:

Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within ten (10) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.


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