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Smith v. Secretary Of Pennsylvania Department of Corrections

United States District Court, W.D. Pennsylvania

March 7, 2017

ANTHONY TUSWEET SMITH, Plaintiff,
v.
SECRETARY OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS, SCI GREENE F-UNIT MANAGER, SCI GREENE CAPTAIN SHRADER, SCI GREENE RHU LT. MORRIS, SCI GREENE RHU SGT. TIKEY, SCI GREENE C/O ARBABELL, SCI GREENE C/O CARTER, SCI GREENE C/O HOLLOWOOD, SCI GREENE C/O LEWIS, SCI GREENE C/O RIDDLE, SCI GREENE C/O RECICHAR, Defendants.

          JOY FLOWERS CONTI CHIEF JUDGE

          REPORT AND RECOMMENDATION RE: ECF NO. 3

          MAUREEN P. KELLY CHIEF UNITED STATES MAGISTRATE JUDGE

         I. RECOMMENDATION

         It is 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.

         II. REPORT

         Anthony 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 (“SCI-Greene”).

         A. Procedural History and Factual Allegations of the Complaint.

         Pursuant 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.

         B. 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).

         In 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[2] 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 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).[3]The five strikes are as follows:
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 ...

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