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Bailey v. Beard

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA


April 8, 2010

DEMETRIUS BAILEY, PLAINTIFF,
v.
JEFFREY BEARD, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Sean J. McLaughlin United States District Judge

MEMORANDUM ORDER

This civil rights complaint was received by the Clerk of Court on November 6, 2008 and was referred to United States Magistrate Judge Susan Paradise Baxter for report and recommendation in accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1), and Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrates. On November 20, 2008, Plaintiff filed a motion for leave to proceed in forma pauperis [2], which was granted on July 16, 2009 [17]. On February 25, 2010, numerous Defendants filed a "Motion to Vacate IFP Order, Deny IFP Motion and Dismiss Complaint" [28].

The Magistrate Judge's Report and Recommendation [30], filed on March 1, 2010, recommends that: (i) the Defendants' motion be granted, (ii) the Court's July 16, 2009 Order granting in forma pauperis status be vacated, (iii) Plaintiff's motion for leave to proceed in forma pauperis be denied; and (iv) the complaint be dismissed without prejudice to Plaintiff's right to reopen the case by paying the required $350.00 filing fee within sixty (60) days of the date of dismissal. The Magistrate Judge notes that, during his incarceration, the Plaintiff has filed at least three prior lawsuits which have been dismissed as legally frivolous or failing to state a claim upon which relief may be granted and, as a result, 28 U.S.C. § 1915(g) precludes the Plaintiff from bringing a civil action under the in forma pauperis statute, unless he is "under imminent danger of serious physical injury." 28 U.S.C. § 1915(g). The Magistrate Judge notes that no averments concerning "imminent danger of serious physical injury" have been made here.

The parties were allowed ten (10) days from the date of service in which to file objections. Service was made on Plaintiff by certified mail to SCI Fayette, where he is incarcerated. To date, no objections have been filed. After de novo review of the complaint and documents in the case, together with the Report and Recommendation, the following order is entered:

AND NOW, this 8th day of April, 2010; IT IS ORDERED that:

1. The Defendants' Motion to Vacate IFP Order, Deny IFP Motion and Dismiss Complaint [28] be, and hereby is, GRANTED;

2. The Magistrate Judge's July 16, 2009 Order [17] granting Plaintiff in forma pauperis status be, and hereby is, VACATED;

3. Plaintiff's motion for leave to proceed in forma pauperis [2] be, and hereby is, DENIED;

4. This Court's prior Order of March 24, 2010 [58] regarding Notice of Inability to Effectuate Service [48] be, and hereby is, VACATED; and

5. The complaint be, and hereby is, DISMISSED WITHOUT PREJUDICE to Plaintiff's right to reopen the case by paying the required $350.00 filing fee on or before June 7, 2010.

The Report and Recommendation of Magistrate Judge Baxter [30], dated March 1, 2010, is adopted as the opinion of this Court.

20100408

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