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Kelly v. Merrill

United States District Court, M.D. Pennsylvania

February 3, 2015

ALLEN KELLY, Plaintiff,
v.
J.T. MERRILL, et al., Defendants.

ORDER

CHRISTOPHER C. CONNER, Chief District Judge.

AND NOW, this 3rd day of February, 2015, upon consideration of the report (Doc. 10) of Chief Magistrate Martin C. Carlson recommending the court deny the pro se plaintiff's motion (Doc. 2) for leave to proceed in forma pauperis and dismiss without prejudice plaintiff's complaint (Doc. 1) pursuant to 28 U.S.C. § 1915(g) (the "three strikes rule") because plaintiff has previously had at least six civil lawsuits dismissed as frivolous, [1] and several other lawsuits dismissed pursuant to the three strikes rule, [2] and, following an independent review of the record, the court in agreement with the magistrate judge that plaintiff is barred from filing any future lawsuits in forma pauperis, and has failed to satisfy the imminent danger exception to the three strikes rule as articulated in Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir. 2001) ( en banc ), and further upon consideration of Judge Carlson's second report (Doc. 11) recommending the court also deny plaintiff's motion (Doc. 4) for a preliminary injunction, [3] wherein Judge Carlson concludes that plaintiff has failed to satisfy the high burden of demonstrating that injunctive relief is appropriate, and specifically concludes that plaintiff cannot demonstrate a reasonable probability of success on his claims both by operation of the three strikes rule and because the claims are meritless, (see Doc. 11 at 9-17), and it appearing that neither party has objected to the report, [4] and that there is no clear error on the face of the record, [5] see Nara v. Frank, 488 F.3d 187, 194 (3d Cir. 2007) (explaining that "failing to timely object to [a report and recommendation] in a civil proceeding may result in forfeiture of de novo review at the district court level"), it is hereby ORDERED that:

1. The reports (Docs. 10-11) of Magistrate Judge Carlson are ADOPTED in their respective entireties.
2. Plaintiff's motion (Doc. 2) for leave to proceed in forma pauperis and motions (Docs. 4, 15) for injunctive relief are DENIED.
3. Plaintiff's complaint (Doc. 1) is DISMISSED and the Clerk of Court is directed to CLOSE this case.
4. Any appeal from this order is deemed to be frivolous and not taken in good faith. See 28 U.S.C. § 1915(a)(3).

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