United States District Court, W.D. Pennsylvania
FLOWERS CONTI CHIEF JUDGE
REPORT AND RECOMMENDATION RE: ECF NO. 3
MAUREEN P. KELLY CHIEF UNITED STATES MAGISTRATE JUDGE
recommended that the Motion for Leave to Proceed In Forma
Pauperis (“the IFP Motion”), ECF No. 3, be denied
for two independent reasons. First, Plaintiff has acquired at
least three strikes and thus is not permitted to proceed in
forma pauperis (“IFP”) and his proposed Complaint
does not reveal imminent risk of serious physical injury.
Secondly, Plaintiff has more than sufficient funds in his
inmate account pay the entire filing fee with substantial
amounts remaining for his personal needs.
Tusweet Smith (“Plaintiff”), is a prolific pro se
litigant with a long history of filing prisoner civil rights
suits and habeas petitions in the federal courts of
Pennsylvania. Plaintiff is now incarcerated at the State
Correctional Institution in Greene
Procedural History and Factual Allegations of the
to the prisoner mail box rule, Plaintiff filed this action on
January 13, 2017, when he signed the original Motion for
Leave to Proceed In Forma Pauperis (the “IFP
Motion”). ECF No. 1 at 1. However, Plaintiff's
original IFP Motion, ECF No. 1, was deficient. Accordingly,
on January 26, 2017, the Court issued a Deficiency Order,
directing Plaintiff to correct the deficiency and closing the
case until he complied. ECF No. 2. On February 16, 2017,
Plaintiff filed the present IFP Motion, ECF No. 3. Plaintiff
seeks to pursue a prisoner civil rights suit under 42 U.S.C.
§ 1983. However because he has at least three strikes,
he is barred from proceeding IFP unless the proposed
Complaint, ECF No. 1-1, reveals imminent risk of serious
physical injury. However, Plaintiff's proposed complaint
only alleges issues concerning body cavity searches that he
was required to undergo whenever he left his cell in the
Restricted Housing Unit, which the Court notes, is done as a
matter of policy, and which strip search(es) occurred in July
2016. Plaintiff also complains that as a result of his
complaining about strip searches conducted by Defendant
Corrections Sergeant Tikey, he was subsequently denied
outside recreation for a period of about 90 days. In
addition, Plaintiff complains that from August 12 to
September 12, 2016, Sergeant Tikey gave Plaintiff the food
tray with the “less proportioned meal” in
retaliation for Plaintiff's filing of a grievance. ECF
No. 1-1 at 3, ¶ IV.7. Plaintiff also claims that on
September 3, 2016, he found mouse excrement on the bottom of
the cereal portion of his food tray and then he informed the
corrections officer who went to acquire a new food tray. Id.,
¶ 9. Plaintiff claims that the alleged conduct reveals
violations of his Fourth Amendment, Eighth Amendment and
Fourteenth Amendment rights. Id. at 2, ¶ III.
Plaintiff Has at Least Three Strikes.
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.”). A plaintiff who has
three strikes, bears the burden of showing that he is in
“imminent danger of serious physical injury.”
Bullock v. Berrier, No. CIV.A. 15-1J, 2015 WL
5439207, at *3 (W.D. Pa. Sept. 15, 2015) (“it is for
this Court to resolve the question of whether Plaintiff has
carried his burden to show imminent danger of serious
physical injury.”) (footnote omitted).
considering the pending IFP Motion, this Court takes judicial
notice of court records and dockets of the federal courts.
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
federal courts reveals that Plaintiff has accumulated at
least five “strikes” within the contemplation of
28 U.S.C. § 1915(g)2 which provides in relevant part
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).The five strikes are as
1) Smith v. Shoupe, No. 2:06-cv-831-JFC-FXC (W.D.
Pa. ECF No. 41 (Report recommending grant of Motions to
Dismiss for Failure to State a Claim), ECF ...