United States District Court, W.D. Pennsylvania
January 13, 2014
VALENTINO AMARO, Petitioner,
AMBRIDGE POLICE DEPARTMENT; SGT. KLEBER; SHERIFF YASEK; TOM OCHS, Respondents.
REPORT AND RECOMMENDATION RE: ECF NO. 1
MAUREEN P. KELLY, Magistrate Judge.
It is respectfully recommended that the Plaintiff's Motion for Leave to Proceed In Forma Pauperis (the "Motion"), ECF No. 1, be denied.
II. REPORT Amaro Valentino ("Plaintiff") is a prisoner who previously filed several lawsuits and at least one appeal, 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 in forma pauperis ("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.").
In considering the pending Motion, 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:
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 this case, Plaintiff is a "prisoner" within the meaning of 28 U.S.C. § 1915(g). Plaintiff's three strikes are as follows: 1) Amaro v. Vedder, No. 08-4130 (3d Cir. Opinion filed on 3/26/2009) (opinion dismissing the appeal because it "lacks any arguable legal merit" pursuant to "28 U.S.C. § 1915(e)(2)(B)(i)"); 2) Amaro v. Nicholas, No. 06-CV-3129 (E.D. Pa., ECF No. 11 filed 11/9/2006) (Memorandum order at 5, dismissing the case pre-service as "legally frivolous"); and 3) Amaro v. Ellis, No. 08-CV-4779 (E.D. Pa., ECF No. 12 at 7, ¶ 1 Memo Order filed 2/26/2009 stating "The Complaint is DISMISSED as legally frivolous, pursuant to 28 U.S.C. § 1915(e)(2)"). In fact, Plaintiff has more than three strikes. See also Amaro v. Vedder, No. 08-CV-3368 (E.D. Pa., ECF No. 5 filed on 9/23/2008) (Memorandum Order at 1, ¶ 3 dismissing complaint as "frivolous pursuant to § 1915(e)(2)(b)(I)" [sic] & id. at 2, ¶ 4 dismissing complaint as "frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)"). Accordingly, because Plaintiff has at least three strikes, he 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.
Plaintiff's Complaint centers around the alleged actions of Ambridge Police Department and on an event that apparently occurred on September 5, 2010. Essentially, Plaintiff alleges that the Ambridge Police Department issued a "GPS/alert on my criminal back ground without proper cause." ECF No. 1-1 at 2, ¶ IV. C. By way of relief, Plaintiff states that he wants "the Court to remove this status on my record by the Ambridge Police Department." Id. at 3, ¶ VI.
The Complaint fails to allege any danger of physical injury, yet alone, danger of physical injury that is imminent as would be required under Section 1915(g) in order to permit a prisoner to proceed IFP even though he has three strikes.
Because Plaintiff has failed to assert any allegation 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.
For the reasons set forth herein, it is recommended that the pending Motion be denied.
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. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. 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.