United States District Court, W.D. Pennsylvania
ALTON D. BROWN, Plaintiff,
GARY L. LANCASTER, et al., Defendants.
CATHY BISSOON, District Judge.
This case has been referred to United States Magistrate Judge Cynthia Reed Eddy for pretrial proceedings in accordance with the Magistrates Act, 28 U.S.C. §§ 636(b)(1)(A) and (B), and Rules 72.C and 72.D of the Local Rules for Magistrates.
On February 21, 2014, the magistrate judge issued a Report (Doc. 3) recommending that Plaintiff's Motion (Doc. 1) for Leave to Proceed in Forma Pauperis ("IFP") be denied under 28 U.S.C. § 1915(g), and that this case be dismissed without prejudice to Plaintiff reopening it by paying the full statutory and administrative filing fees, totaling $400.00. Service of the Report and Recommendation was made, and Plaintiff has filed Objections. See Doc. 4. Plaintiff's Objections include a request for leave to file an amended complaint, so that he further may attempt to assert claims of "imminent danger" to avoid the three-strikes bar. See id. at ¶ 3.
For the same reasons stated in the Magistrate Judge's Report and Recommendation, which hereby is adopted as the Opinion of the District Court, Plaintiff's Objections are OVERRULED. In addition, Plaintiff's request for leave to amend is DENIED. Plaintiff is no stranger to the IFP standards, generally, and the "three strike" standards, specifically, and he already has made concerted efforts to demonstrate "imminent danger, " in both the original Complaint and in his Objections. As the Magistrate Judge already has explained, however, Plaintiff's theory of injury, namely, that longstanding "serious physical and psychological injuries" have worsened as a result of Defendants' purported conspiracy,  fails to establish "imminent danger" as defined under the law. No amount of additional averment can cure this deficiency, and his request to amend is denied based on futility. See generally Goodson v. Kardashian, 2011 WL 167272, *2 (3d Cir. Jan. 20, 2011) (affirming denial of prisoner's motion for leave to amend based on futility).
Finally, to the extent that Plaintiff would identify unrelated theories of injury or harm, the proper course is not amendment, but rather, the filing of a new lawsuit. See Williams v. Dep't of Corr., 2009 WL 1649142, *5 (D. Del. Jun. 8, 2009) ("[t]he court will not allow [plaintiff] to add claims, unrelated in time or to allegations in the original complaint"; "[the] available remedy [is the] filing [of] a new lawsuit"); cf. also Brown v. Blaine, 2006 WL 1716772, *2 (3d Cir. Jun. 16, 2006) (holding, in case brought by this same Plaintiff, that "[a]llowing [him] to allege unrelated claims against new defendants based on actions taken after the filing of the original complaint would defeat the purpose of the three strikes provision of the PLRA, " and noting that he "remain[ed] free to initiate a new lawsuit"). Notably, the instant ruling does not prohibit Plaintiff from pursuing his instant claims in federal court, it only denies him the privilege of proceeding without the payment of filing fees.
For all of the reasons stated above, and after a de novo review of the pleadings and documents in the case, together with the Report and Recommendation and the Objections thereto, the following Order is entered:
Plaintiff's Motion (Doc. 1) for Leave to Proceed in Forma Pauperis is DENIED, and this case is DISMISSED WITHOUT PREJUDICE to reopening once Plaintiff ...