Opinion
Civil Action No. 2: 19-cv-1400
01-06-2020
NATHAN HOYE, Plaintiff, v. ALLEGHENY COUNTY JAIL, Defendant.
United States District Judge Nora Barry Fischer REPORT & RECOMMENDATION
I. Recommendation
For the following reasons, it is respectfully recommended that Plaintiff's Motions for Leave to Proceed In Forma Pauperis (ECF Nos. 5 and 6) 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, Nathan Hoye, is a "frequent filer" of complaints. Since January of 2017, he has filed approximately thirty-six (36) civil rights cases in this Court, with approximately nine (9) of those cases containing the same allegations that are present in the instant lawsuit: he contends he has a live mouse in his rectum / stomach, which is eating him alive, and every correctional institution he has been placed in refuses to remove it. Hoye requests that this Court order that he be seen at a "outside hospital" for treatment.
See Civil Action Nos. 17-0162, 17-0219, 18-0800, 18-1028, 18-1254, 18-1392, 19-0634, 19-1308, and 19-1400.
On October 28, 2019, the Court received Hoye's complaint, dated October 12, 2019. It was not accompanied by the filing fee or a motion for leave to proceed in forma pauperis; accordingly, Hoye was advised that the case was administratively closed until such time as he either paid the filing fee in full or submitted a properly completed application to proceed in forma pauperis. (ECF No. 2). On November 8, 2019, the Court received Hoye's first motion for leave to proceed in forma pauperis (ECF No. 3) but because the motion did not contain the mandatory financial information, it was dismissed without prejudice. (ECF No. 4). On December 3, 2019, and again on December 23, 2019, Hoye submitted two additional motions for leave to proceed in forma pauperis. (ECF Nos. 5 and 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).
B. 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).
The Court takes judicial notice of the fact that Hoye 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);
(2) 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 to 28 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A);
(3) Nathan Hoye v. Mr. Eli Zlokas, Attorney at Law, and Dwayne Woodruff, Honorable Judge Allegheny County, No. 2:17-cv-0270 (W.D.Pa.) (case initiated on March 13, 2017; complaint dismissed with prejudice on April 12, 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); and
(4) Nathan Hoye v. SCI Camp Hill Prison, et al, No. 2:17-cv-0452 (W.D.Pa.) (case initiated April 10, 2017; complaint dismissed with prejudice on May 8, 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).
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). The Court of Appeals for the Third Circuit has instructed that:
"[i]mminent" dangers are those dangers which are about to occur at any moment or are impending. By using the term "imminent," Congress indicated that it wanted to include a safety valve for the "three strikes" rule to prevent impending harms, not those harms that had already occurred. The imminent danger exception allows the district court to permit an otherwise barred prisoner to file a complaint I.F.P. if the prisoner could be subject to serious physical injury and does not then have the requisite filing fee.Id. at 315 (internal citation omitted). Imminent danger requires a showing of serious physical injury at the time the complaint is filed. Id. at 312. The imminent danger exception is available only for genuine emergencies where time is pressing and a threat is real and proximate. Long v. Lanigan, et al., CA No. 10-0798, 2010 WL 703181, *2 (D.N.J., Feb. 23, 2010).
A court need not accept all allegations of injury made pursuant to § 1915(g). To the contrary, a court may discredit "factual claims of imminent danger that are clearly baseless, i.e., allegations that are fantastic or delusional and rise to the level of the irrational or wholly incredible . . . we are not required to accept without question the truth of the plaintiff's allegations." Brown v. City of Philadelphia, 331 F. App'x 898, 900 (3d Cir.), cert. denied, 558 U.S. 999 (2009) (citing Denton v. Hernandez, 504 U.S. 25, 33 (1992)). "[C]ourts have the discretion to deny leave to proceed IFP when a prisoner's claims of imminent danger are conclusory or ridiculous . . . ." Ball v. Famiglio, 726 F.3d 448, 467-68 (3d Cir. 2013), abrogated on other grounds by Parker v. Montgomery County Correctional Facility, 870 F.3d 114 (3d Cir. 2017) (applying Coleman v. Tollefson, ___ U.S. ___, 135 S.Ct. 1759 (2015), for purposes of the three strike rule, strike takes effect at time of dismissal even if dismissal is the subject of an appeal).
C. Discussion
Applying the above legal principles, and reviewing the allegations of the Complaint, the Court finds that Hoye's allegations are insufficient to satisfy the imminent danger requirement of 28 U.S.C. § 1915(g). As our appellate court instructed, the Court may "deny leave to proceed IFP when a prisoner's claims of imminent danger are conclusory or ridiculous." Ball v. Famiglio, 726 F.3d 448, 468 (3d Cir. 2013) (quotations omitted)). As the United States Court of Appeals for the Third Circuit has noted, "[a] court need not accept all allegations of injury" or "accept without question the truth of the plaintiff's allegations." Brown v. City of Philadelphia, 331 F. App'x 898, 900 (3d Cir.), cert. denied, 558 U.S. 999 (2009). "To the contrary, a court may discredit 'factual claims of imminent danger that are 'clearly baseless.'" Id. (quoting Gibbs v. Cross, 160 F.3d 962, 967 (3d Cir. 1998)). The allegations in the instant Complaint at best can be described as fanciful, fantastic, and/or delusional.
III. Conclusion
Based on the discussion above, it is respectfully recommended that Plaintiff's Motions for Leave to Proceed in forma pauperis (ECF Nos. 5 and 7) 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 is permitted to file Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, Plaintiff, because he is a non-electronically registered party, may file objections to this Report and Recommendation by January 23, 2020. Plaintiff is cautioned that failure to file Objections within this timeframe "will waive the right to appeal." Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Dated: January 6, 2020
/s Cynthia Reed Eddy
Cynthia Reed Eddy
Chief United States Magistrate Judge cc: NATHAN HOYE
NX-8604
SCI Somerset
P.O. Box 1000
1590 Walters Mill Road
Somerset, PA 15510
(via U.S. First Class Mail)