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Rieco v. McCreary

United States District Court, W.D. Pennsylvania

December 4, 2019

DWAYNE L. RIECO, Plaintiff,
McCREARY, et al., Defendants.

          Arthur J. Schwab, United States District Judge


          Cynthia Reed Eddy, Chief United States Magistrate Judge

         I. Recommendation

         For the following reasons, it is respectfully recommended that Plaintiff's Motion for Leave to Proceed In Forma Pauperis (ECF No. 5) 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

         A. Background

         Plaintiff, Dwayne L. Rieco (“Rieco”), is a very litigious Pennsylvania state prisoner currently housed at SCI-Greene. On September 9, 2019, the Court received Rieco's complaint, dated August 27, 2019. It was not accompanied by the filing fee or a motion for leave to proceed in forma pauperis; accordingly, Rieco was advised that the case was administratively closed until such time as Rieco either paid the filing fee in full or submitted a properly completed application to proceed in forma pauperis. (ECF No. 4). On October 25, 2019, the Court received Rieco's motion for leave to proceed in forma pauperis (ECF No. 5) and a separate Notice from Rieco, in which he acknowledged that he had accumulated three strikes and understood “that he will have to file his motion showing he is placed in imminent danger pursuant to 28 U.S.C. § 1915(g) and will do so as soon as he can get all documents copied and attached to his motion to support his motion.” Pl's Notice (ECF No. 6). On November 14, 2019, the Court received Rieco's “Notice of Intimidations by Defendants and Corrections Officers Who are Causing Him Serious Physical Injuries With Methane and Radon Gasses To Cause Him Asphyxiation.” (ECF No. 7).

         The United States Court of Appeals for the Third Circuit recently clarified that courts may use a flexible approach in assessing IFP applications under the PLRA and “has the authority to dismiss a case ‘at any time,' 28 U.S.C. 1915(e)(2), regardless of the status fee; that is, a court has the discretion to consider the merits of a case and evaluate an IFP application in either order or even simultaneously.” Brown v. Sage, 941 F.3d 656, 660 (3d Cir. 2019).

         Rieco names twelve defendants in the Complaint, nine of which appear to be prisoners, who are currently, or previously had been, housed at SCI-Greene.[1] The gist of Rieco's Complaint is that inmates have threatened to kill and/or harm him and his mother, including threatening to spit in his food, because SCI-Greene correction officials are telling inmates that “Plaintiff raped a little girl and that is why Plaintiff is in jail.”[2] Complaint at ¶ IV(C). Rieco alleges that the correction officers have instructed the prisoners on what to say and have paid the prisoners with “food and gifts” in order for Rieco to be “vindictively prosecuted.” Complaint, at ¶ 11. He claims that he is in fear of his life and as relief seeks “compensatory damages separately and individually;[3] separation transfer from imminent danger and permanent injunctions / PFA for his mother and family from all defendants. . . .” Rieco claims that Defendants have violated his constitutional rights under the First, Fifth, Sixth, Eighth, and Fourteenth amendments.

         In his Notice of Intimidations, Rieco contends that inmate Small “continues to harass and taunt[] Plaintiff to come out of his cell so he can spit blood knowing he is an infected Hepatitis C patient.” Notice at ¶ 2. He alleges that correction officers have

denied plaintiff unhampered interference to seek his access to the court by gassing him inside his confined air space cell causing him serious bronchial injuries with radon and methane gasses forced through the porous concrete floors and walls by pipelines attached to a tank that contains human wastes below the building and is directed to all inmate cells to intimidate and even murder prisoners who litigate cases of instigated false arrests and civil suites in our courts.

Id. at ¶ 1. That correction officers are “attempting to murder Plaintiff and he is not sentenced to die wich is implicating his sentence. There is no death warrant from Governor Wolf that has been served to grant him notice . . . .” Id. at ¶ 6 (quoted verbatim). He contends that he is being

exposed to a dust particle coming in his vent . . . and no other inmates on G-D Pod are receiving this cruel and unusual life threatening punishment and diagnostic testing are denied to cover up his factual claims of vindictive prosecution by a kangaroo court lynch mob ...

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