United States District Court, W.D. Pennsylvania
NATHAN R. HOYE, Plaintiff,
ALLEGHENY COUNTY MEDICAL DEPARTMENT, Defendant.
REPORT AND RECOMMENDATION
Cynthia Reed Eddy Chief United States Magistrate Judge.
respectfully recommended that, pursuant to the authority
granted courts by 28 U.S.C. §§ 1915(e)(2) and
1915A, the Motion for Leave to Proceed In Forma Pauperis (ECF
No. 4) be denied in accordance with 28 U.S.C. § 1915(g)
and that this action be dismissed without prejudice to
Plaintiff reopening it by paying the full statutory and
administrative filing fees, totaling $400.00.
Plaintiff, Nathan Hoye (“Plaintiff” or
“Hoye”), is a “frequent filer” of
complaints. Since July of 2017, he has filed in this Court
approximately thirty-two (32) civil rights cases and four (4)
habeas case. Hoye is currently a pretrial detainee
incarcerated at the Allegheny County Jail.
case was commenced on May 29, 2019, when Hoye submitted for
filing a civil rights complaint pursuant to 42 U.S.C. §
1983. The Complaint was not accompanied by either a motion
for leave to file in forma pauperis or the requisite
filing fee. (ECF No. 1). On June 25, 2019, Hoye submitted a
Motion for Leave to Proceed In Forma Pauperis. (ECF No. 4).
instant case, Hoye alleges, as he has in a number of previous
lawsuits, that he has a “live mice in my stomach,
rectum, and both feet that can cause death. I am in imminent
danger any day I can die and medical refuses to help and or
take me to a outside medical hospital for treatment to have
the mice remove[d].”
to 28 U.S.C. § 1915(g), a prisoner who has filed three
civil actions that were dismissed on the basis that they were
frivolous, malicious, or failed to state a claim upon which
relief may be granted may not proceed in forma
pauperis “unless the prisoner is in imminent
danger of serious physical injury” at the time the
complaint was filed. Ball v. Famiglio, 726 F.3d 448,
467 (3d Cir. 2013), abrogated in part by Coleman v.
Tollefson, __U.S.__, 135 U.S. 1759, 1763 (2015).
Prisoners with three strikes who cannot satisfy the imminent
danger exception are not barred from filing additional
federal actions, rather they are denied the privilege of
proceeding in forma pauperis and must pay the
requisite filing fee in full prior to commencing a new
action. Abdul-Akbar v. McKelvie, 239 F.3d 307, 314
(3d Cir.) (en banc), cert denied, 533 U.S. 953
(2001). Thus, when denying or revoking a prisoner's
in forma pauperis status because of his or her
accrual of three strikes, the court must determine what
strikes the prisoner accrued prior to imitating the action
immediately before the court. Gibbs v. Ryan, 160
F.3d 160, 162 (3d Cir. 1998). If determined to have three
qualifying strikes to their name, then the court must
consider whether the prisoner qualifies for the
“imminent danger” exception.
deciding whether a prisoner meets the “imminent
danger” requirement, a court must examine the situation
faced by the prisoner at the time of the filing of the
complaint, and a showing of danger in the past is
insufficient to demonstrate “imminent danger.”
Abdul-Akbar, 239 F.3d at 312. Allegations of
imminent danger must be evaluated in accordance with the
liberal pleading standard applicable to pro se litigants,
although the Court need not credit “fantastic or
delusional” allegations that “rise to the level
of irrational or wholly incredible.” Gibbs v.
Cross, 160 F.3d 962, 966-67 (3d Cir. 1998) (quotations
Court takes judicial notice of the fact that Plaintiff has at
least “three strikes” within the meaning of 28
U.S.C. § 1915(g):
* Nathan Rowshawn Hoye v. Eli A. Zlokas, No.
2:17-cv-0021 (W.D.Pa.) (case initiated on January 5, 2017;
complaint dismissed with prejudice on April 13, 2017, for
failure to state a claim upon which relief can be granted
pursuant to 28 U.S.C. § 1915(e)(2) and 28 U.S.C. §
* Nathan Hoye v. SCI Greene Prison Medical Department,
Dr. Ms. Pillia, Dr. Valley, Dr. Raj, No. 2:17-cv-0162
(W.D.Pa.) (case initiated on February 3, 2017; complaint
dismissed with prejudice on April 13, 2017, for failure to
state a claim upon which relief can be granted pursuant ...