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Hoye v. Allegheny County Medical Department

United States District Court, W.D. Pennsylvania

July 1, 2019

NATHAN R. HOYE, Plaintiff,
v.
ALLEGHENY COUNTY MEDICAL DEPARTMENT, Defendant.

          REPORT AND RECOMMENDATION

          Cynthia Reed Eddy Chief United States Magistrate Judge.

         I. Recommendation

         It is 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.

         II. Report

         Pro se 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.

         This 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).

         In the 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].”

         A. Relevant Law

         Pursuant 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.

         When 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 omitted).

         B. Discussion

         The Court takes judicial notice of the fact that Plaintiff has at least “three strikes” within the meaning of 28 U.S.C. § 1915(g):[1]

* 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. § 1915A);
* 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 ...

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