United States District Court, W.D. Pennsylvania
REPORT AND RECOMMENDATION ECF NO. 1
Pupo Lenihan United States Magistrate Judge
following reasons, it is respectfully recommended that
Plaintiff's Motion for Leave to Proceed in forma
pauperis, (ECF No. 1), be denied in accordance with 28
U.S.C. § 1915(g), and that this action be dismissed
without prejudice to Plaintiff's right to reopen it by
paying the full $400.00 filing fee.
Alfonso Percy Pew is an inmate currently incarcerated at the
State Correctional Institution at Houtzdale. He has sought
leave to proceed in forma pauperis
(“IFP”) in order to file a civil rights complaint
alleging violations of his First and Eighth Amendment rights
under the United States Constitution, as well as his rights
under the Religious Land Use and Institutionalized Persons
Act (RLUIPA). (ECF No. 1-6.) For the following reasons,
Plaintiff's Motion for Leave to Proceed IFP should be
it is a plaintiff's burden to prove entitlement to IFP
status. See White v. Gregory, 87 F.3d 429, 430 (10th
Cir. 1996); 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
Court takes judicial notice of court records and dockets of
the Federal Courts located in Pennsylvania as well as those
of the Court of Appeals for the Third Circuit. See
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 “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 was 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.
is a “prisoner” within the meaning of 28 U.S.C.
following actions filed by Plaintiff while in forma
pauperis were dismissed by the United States District
Court for the Eastern District of Pennsylvania as frivolous:
Pew v. Cox, Civil No. 93-4128 (E.D. Pa.) (order
entered Aug. 20, 1993); Pew v. Clark, Civil No.
94-4813 (E.D. Pa.) (order entered Aug. 19, 1994); Pew v.
Pavicic, Civil No. 94-4821 (E.D. Pa.) (order entered
Aug. 19, 1994).
the following appeals filed by Plaintiff while in forma
pauperis were dismissed by the Third Circuit as
frivolous: Pew v. Cox, C.A. No. 93-2041 (3d Cir.)
(order entered March 31, 1994); Pew v. Casner, C.A.
No. 95-7176 (3d Cir.) (order entered July 31, 1995); Pew
v. Love, C.A. No. 96-7314 (3d Cir.) (order entered Oct.
because Plaintiff has at least three strikes,  he may not
proceed IFP unless he is “under imminent danger of
serious physical injury” as revealed by the complaint
as of the time of filing the application for leave to proceed
IFP and/or the complaint. See Abdul-Abkar v.
McKelvie, 239 F.3d 307 (3d Cir. 2001); Banos v.
O'Guin, 144 F.3d 883, 884 (5th Cir. 1998)
(“The plain language of the statute [i.e., Section
1915(g)] leads us to conclude that a prisoner with three
strikes is entitled to proceed with his action or appeal only
if he is in imminent danger at the time that he seeks to file
his suit in district court or seeks to proceed with his
appeal or files a motion to proceed IFP.”).
today, the Court conducted a hearing on Plaintiff's
allegations of imminent danger as set forth in his Complaint.
The Court heard testimony from several witnesses, as well as
from Plaintiff himself, and ultimately determined that
Plaintiff's allegations did not meet the standard of
imminent danger of serious physical injury. It was therefore
recommended that Plaintiff's Motion for IFP be denied.