United States District Court, M.D. Pennsylvania
REPORT AND RECOMMENDATION
KAROLINE MEHALCHICK, Magistrate Judge.
On October 30, 2013, Plaintiffs Derek Clifton, Leonards Quattlebaum, Eric Maple, Tyrone Davis, Demetrius Bailey, Jeff Turner, David Snyder, Abdul Brown, Terrance Maxwell, and Yassin Mohamad, proceeding pro se, brought this civil rights action pursuant to 42 U.S.C. § 1983 alleging violations of their First, Eighth, and Fourteenth Amendment rights. (Doc. 1). Per this Court's December 17, 2013, Order (Doc. 30), the Court dismissed Plaintiffs Quattlebaum, Davis, Snyder, Brown, Maxwell, and Mohamad from this action for failure to pay the filing fee or file the appropriate applications to proceed in forma pauperis. Per this Court's January 7, 2014, Order, Plaintiff Clifton was also dismissed. ( See Doc. 33). Pending before the Court are the remaining Plaintiffs' motions for in forma pauperis (Doc. 15 Turner Motion; Doc. 24 Maple Motion; Doc. 28 Bailey Motion), and Turner's motion to appoint counsel. (Doc. 18).
I. PLAINTIFF BAILEY
A. PLRA THREE STRIKES
Plaintiff Bailey is barred from proceeding in forma pauperis pursuant to the "three strikes rule" set forth in 28 U.S.C. § 1915(g), and he has failed to demonstrate that he was under imminent danger of serious physical injury at the time the complaint was filed.
The statutory text of the "three strikes rule" provides 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. 28 U.S.C. § 1915(g).
The Third Circuit recently discussed the appropriate standard for evaluating the accrual of "strikes" under 28 U.S.C. § 1915(g).
[A] strike under § 1915(g) will accrue only if the entire action or appeal is (1) dismissed explicitly because it is "frivolous, " "malicious, " or "fails to state a claim" or (2) dismissed pursuant to a statutory provision or rule that is limited solely to dismissal for such reasons, including (but not necessarily limited to) 28 U.S.C. §§ 1915A(b)(1), 1915(e)(2)(B)(i), 1915(e)(2)(B)(ii), or Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Byrd v. Shannon, 715 F.3d 117, 126 (3d Cir. 2013).
Demetrius Bailey has, on three occasions, while incarcerated or detained, brought an action or appeal in a court of the United States that was dismissed as frivolous. Bailey v. Diguglielmo, 3d Cir. C.A. No. 11-1634 (order entered Feb. 24, 2012). See Bailey v. Crisanti, 3d Cir. C.A. No. 00-4334 (order entered Nov. 14, 2001); Bailey v. Crisanti, W.D. Pa. Civ. No. 00-cv-01310 (order entered Nov. 22, 2000); Bailey v. Price, W.D. Pa. Civ. No. 99-cv-00470 (order entered Dec. 22, 1999). Accordingly, he may not proceed in forma pauperis unless he can show "imminent danger of serious physical injury" when he filed his complaint. 28 U.S.C. § 1915(g); Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir. 2001) (en banc) ("[A] prisoner may invoke the imminent danger' exception only to seek relief from a danger which is imminent' at the time the complaint is filed."). In this matter, Bailey has not made the requisite showing of imminent danger. For these reasons, if Bailey wishes to proceed with this complaint, he must pay the full applicable filing and docketing fees to the District Court within fourteen (14) days of the date of this order. No extensions of time to pay the fees will be granted. If Plaintiff Bailey pays the full filing and docketing fees, the case will be reopened.
II. PLAINTIFFS TURNER AND MAPLE
A. STANDARD OF REVIEW
Plaintiffs Turner and Maple seek leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Upon consideration, the Court will grant Plaintiffs Turner and Maple's requests for leave to proceed in forma pauperis. (Doc. 15; Doc. 24). Because the Court grants Turner and Maple's requests to proceed in forma pauperis, the Court is compelled to screen the complaint and to dismiss the complaint if it is frivolous or malicious, fails to state a claim, or otherwise seeks monetary relief against a defendant who is immune. See 28 U.S.C. § 1915(e)(2)(B). For the ...