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Bronson v. Overton

May 27, 2010

PURCELL BRONSON, PLAINTIFF
v.
MAXINE OVERTON; DOCTOR BAKER RAYMOND SOBINA; AND CINDY WATSON, DEFENDANTS



The opinion of the court was delivered by: Chief Magistrate Judge Amy Reynolds Hay

Judge Alan Bloch

REPORT AND RECOMMENDATION

Recommendation

It is respectfully recommended that the order granting Plaintiff's application for leave to proceed in forma pauperis be vacated and that Plaintiff be required to pay the filing fee within 21 days of adoption of this report or face dismissal for failure to prosecute.

Report

Plaintiff was, at the initiation of this suit, incarcerated at SCI-Albion, which is located within the territorial limits of the United States District Court for the Western District.*fn1 In Plaintiff's original civil rights complaint, Plaintiff sued Maxine Overton, Dr. Baker, Raymond Sobina and Cindy Watson. Dkt. [1-2]. The sum total of Plaintiff's factual complaints were that

1) On November 28 [and] 29, 2007, Plaintiff sought to see a doctor for [a] physical examination of his ailments of his right knee tendon/ligament tear, relapse of ankle surgery, system-wide arthritis and painful muscle cramps.

2) These sick call requests were submitted when defendant Baker stated on Nov. 8, 2007, that he would first order a blood test, and once these results came back, he would call Plaintiff back over to discuss the blood test results and address Plaintiff's other concerns. He failed/refused to do so. Plaintiff's medical health has deteriorated.

3) When Plaintiff's Nov. 28 [and] 29 sick call slips were not processed, he filed grievance # 209827 concerning same.

4) Defendant Overton, Hospital Administrator responded to said grievance, by stating that "no requests have been received from inmate Bronson since he was last seen by Dr. Baker on November 8, 2007."

Dkt. [1-2] at 2. By way of relief, Plaintiff seeks declaratory and injunctive relief. In addition, he seeks compensatory damages.

This case was originally and mistakenly assigned to another Magistrate Judge who, not being as familiar with Plaintiff's history of litigiousness, granted Plaintiff's IFP motion. However, because Plaintiff has acquired at least three strikes, Plaintiff's IFP motion should have been denied and, accordingly, the order granting Petitioner leave to proceed in forma pauperis should be vacated and Plaintiff ordered to pay the filing fee within twenty-one days of the Court's adoption of this Report or face dismissal for failure to prosecute.

It is a plaintiff's burden to prove entitlement to IFP status. See White v. Gregory, 87 F.3d 429, 430 (10 th 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.").

The 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 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). The computerized dockets of those courts reveal that Plaintiff has accumulated at least ...


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