United States District Court, W.D. Pennsylvania
Marilyn J. Horan, District Judge.
REPORT AND RECOMMENDATION
Pupo Lenihan, United States Magistrate Judge.
respectfully recommended that Plaintiff's Motion 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 until such time that Plaintiff
pays the full $400.00 filing fee.
Richard Hollihan, Jr., an inmate in the Pennsylvania
Department of Corrections, initiated this action with the
submission of a Motion for Leave to Proceed in forma
pauperis (“IFP”) that was filed on April 11,
2019. (ECF No. 1.) Upon review of Plaintiff's Motion, the
Court has discovered that Plaintiff is prohibited from
proceeding IFP pursuant to 28 U.S.C. § 1915(g) because
he has accumulated three or more “strikes” and
may not proceed IFP absent a showing of imminent danger.
See 28 U.S.C. § 1915(g).
“three strikes rule” is codified at 28 U.S.C.
§ 1915(g) and provides as follows:
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.
28 U.S.C. § 1915(g). In sum, under the three strikes
rule, a prisoner who, on three or more prior occasions while
incarcerated, has filed an action in a federal court that was
dismissed as frivolous, malicious, or for failure to state a
claim upon which relief may be granted, must be denied in
forma pauperis status unless he is in imminent danger of
serious physical injury. 28 U.S.C. §
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). The three strikes that Plaintiff has accumulated are
the following. The first strike is Davis, et al., v.
Hehman, et al., Civil Action No. 93-876 (E.D. Pa.),
which was dismissed as legally frivolous by Order dated March
8, 1993. The second strike is Davis, et al. v. Morgan, et
al., Civil Action No. 93-489 (W.D. Pa.), which was
dismissed as legally frivolous by Order dated April 26, 1993.
The third strike is Davis, et al. v. Becker, et al.,
Civil Action No. 94-1890 (E.D. Pa.), which was dismissed as
legally frivolous by Order dated May 18, 1994. Additionally,
Plaintiff accrued another strike at Hollihan v. Sobina,
et al., Civil Action No. 94-130 (W.D. Pa.), which was
dismissed as legally frivolous by Order dated June 7, 1994.
undersigned finds that Plaintiff has three strikes against
him. As such, in order to proceed in forma pauperis,
Plaintiff must allege facts showing that he was in imminent
danger of serious physical injury at the time he filed the
complaint. See Abdul-Akbar v. McKelvie, 239 F.3d 307
(3d Cir. 2001) (overruling Gibbs v. Roman, 116 F.3d
83, 86 (3d Cir. 1997)). In making this determination, the
court should construe all allegations in a complaint in favor
of the plaintiff. Gibbs v. Cross, 160 F.3d 962, 965
(3d Cir. 1998); Gibbs v. Roman, 116 F.3d at 86.
Imminent dangers are those dangers which are about to occur
at any moment or are impending. Abdul-Akbar, 239
F.3d 307 at 315. Practices that “may prove detrimental
... over time” do not represent imminent dangers as the
harm is not “about to occur at any moment.”
Ball v. Famiglio, 726 F.3d 448, 468 (3d Cir. 2013),
abrogated in part on other grounds by Coleman v.
Tollefson, ___ U.S. ___, 135 S.Ct. 1759 (2015) (quoting
Abdul-Akbar, 239 F.3d at 315) (internal quotation
marks omitted). Further, even if an alleged harm may in fact
be “impending”, it does not satisfy the exception
if it does not threaten to cause “serious physical
injury.” 28 U.S.C. § 1915(g). Vague or conclusory
allegations are insufficient to meet this standard. See
Ball, 726 F.3d at 468.
Complaint, Plaintiff asserts violations of his equal
protection and due process rights based on the
Defendant's denial of requests to provide him with his
wife's autopsy report, toxicology report, photographs and
other related records. Plaintiff states that these records
are necessary to demonstrate his innocence for the crime of
which he was convicted.
allegations do not indicate imminent danger of any serious
physical injury. Therefore, he is barred from proceeding in
this lawsuit in forma pauperis under 28 U.S.C.
§ 1915(g) and this case should be dismissed without
prejudice until Plaintiff pays the full $400.00 filing fee.