Opinion
Civil Action No. 06-269J.
February 16, 2007
MEMORANDUM ORDER
The above-captioned prisoner civil rights complaint and request to proceed in forma pauperis ("IFP") were received by the Clerk of Court on December 26, 2006, and were referred to United States Magistrate Judge Amy Reynolds Hay for pretrial proceedings in accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1), and Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrate Judges.
The Magistrate Judge's Report and Recommendation ("R R") (Doc. No. 2), filed on January 5, 2007, recommended that the motion to proceed IFP be denied because Plaintiff had accumulated "three strikes" pursuant to 28 U.S.C. § 1915(g) of the Prison Litigation Reform Act (" PLRA"). The R R listed those "three strikes" to include the following, all from the Middle District of Pennsylvania: (1) Savage v. Sincavage, No. 89-CV-1244; (2)Savage v. Slavinski, No. 89-CV-1391; and (3) Savage v. Sokolowski, No. 90-CV-1825. As well, the Magistrate Judge noted a fourth strike: Savage v. Delong, No. 94-CV-249 (M.D.Pa. 1994).
Plaintiff has filed Objections (Doc. 3) to the R R in the form of a so-called affidavit. In this "affidavit," Plaintiff claims that the Savage involved in the aforementioned Middle District cases is his father, Theodore B. Savage, DOB 3-7-1940, and not himself. The Court finds Plaintiff's so-called affidavit to be insufficient because at the end of it Plaintiff merely states, "I declare that the foregoing is true and correct" without stating, as required, "under penalty of perjury." See,e.g., Walton v. Wheatly Co., 986 F.2d 1423 (Table), 1993 WL 43934, at *2-*3 (6th Cir. 1993) (finding inadequate the affidavit by Joyce Walton because it was not acknowledged under the penalty of perjury); United States v. Branella, 972 F.Supp. 294, 299-300 (D.N.J. 1997) (Certifications containing statements, "I hereby certify that all of the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are wilfully false, I am subject to punishment[,]" were fatally inadequate; the court holding that "[t]he failure to acknowledge the penalty of perjury prevents the court from considering the affidavits' contents").
Plaintiff has many aliases including "Ted Katona", "Joseph Savage," "Theodore Bernard Savage, Jr.," "Theodore King Savage, J.D.," and "Theodore Mortagobi Savage." See the Department of Corrections ("DOC") website listing Plaintiff's aliases:
http://www.cor.state.pa.us/inmatelocatorweb/
According to the Department of Corrections, Plaintiff's true name is "Theodore Savage Jr." Id.
In addition, on January 23, 2007, Plaintiff filed another document (doc. 4) which purports to contain an affidavit made by Plaintiff's father, who states he was the plaintiff in the three suits cited by the Magistrate Judge. While this affidavit does not suffer from the flaws of the first affidavit, the Court will give it only what weight the Court deems appropriate.
Thereafter, in an effort to ascertain the truth, this Court ordered case files from the Middle District of Pennsylvania. Following a thorough review of those files, the Court has no hesitancy in finding as a fact that the Plaintiff in this case, Theodore Messiah Savage, and not his father, filed the cases identified by the Magistrate Judge by which he has accumulated at least three strikes.
In Savage v. Delong, attached hereto as Exhibit 1, Plaintiff identifies himself as "Theodore Savage, Jr.," assigned the Pennsylvania Department of Corrections ("DOC") Number CB-2674. In the instant case, the Plaintiff uses the same DOC Number, even though he attempted to avoid this inconvenient truth, as noted by Magistrate Judge Hay's Report, by at times changing one of the letters in the identification number and by using the last name of "Stavage." Doc. 2, p. 2 n. 1. The Court notes that the DOC identification numbers are prisoner specific and no two prisoners can have the same identification number. In other words, the DOC Number "CB-2674" identifies Plaintiff and only Plaintiff. Hence, Plaintiff has at least one strike. Furthermore, in the complaint filed in Savage v. Delong, Plaintiff stated that he was transported to the Carbon County Prison on February 3, 1994 to be sentenced in Case No. 364 CR 1992. The Court takes judicial notice of the dockets of the Carbon County Court of Common Pleas and notes that the criminal docket found at 364 CR 1992 isCommonwealth v. Theodore Savage Jr., and that docket lists the date of birth for Theodore Savage Jr. as February 16, 1968, the very same birth date Plaintiff acknowledges in this case is his. Additionally, Plaintiff attached a letter to his Objections to the Magistrate Judge's Report and Recommendation in the Delong case, wherein he listed his return address as Luzerne County Prison, 99 Water Street, Wilkes-Barre, PA 18702, which is located within the Middle District of Pennsylvania. See Exhibit 2 attached hereto.
See Exhibit 1, attached to this Order, at ¶ II.2.
The complete Carbon County Common Pleas Court Docket Number forCommonwealth v. Theodore Savage Jr., is No. CP-13-CR-0000364-1992. That docket is available at:
http://ujsportal.pacourts.us/PublicReporting/PublicReporting.aspx?rt=1ct=4 dkt=56785654arch=1ST=2/5/2007%203:35:16%20PM
That docket demonstrates that on February 2, 1994, the Carbon County Court of Common Pleas ordered Plaintiff to be transported to the Court for sentencing and that he was sentenced on February 4, 1994, which confirms what Plaintiff had stated in the complaint filed in Savage v. Delong, attached hereto as Exhibit 1, ¶ II.2.
See Doc. 3-1 at 2, ¶ 3.
In the case of Savage v. Sincavage, No. 89-1244 (M.D. Pa.), noted as one of the three strikes by Magistrate Judge Hay, the plaintiff is listed as "Theodore Savage Jr." whose address is 99 Water Street, Wilkes-Barre, PA. 18702, i.e., the same address used in the Delong case. See Exhibit 3 attached to this Memorandum Order. The Court finds that the Plaintiff herein was the plaintiff in Savage v. Sincavage, Hence, Plaintiff has two strikes.
In the next case, Savage v. Sokolowski, No. 90-1825 (M.D. Pa.), the plaintiff listed himself as "Theodore Savage Jr." with the same Luzerne County Prison address of 99 Water Street, Wilkes-Barre, PA. found in the Delong and Sincavage cases. See Exhibit 4 attached hereto. In addition, the plaintiff stated in his case against Sokolowski that he had filed another civil action in the Middle District, referring to No. 90-CV-1336, which is captioned Theodore Savage, Jr. v. Handley, (M.D. Pa.). Again, the Court finds as a fact that Plaintiff herein was the plaintiff in Savage v. Sokolowski, No. 90-1825 (M.D. Pa.). Hence, Plaintiff has at least three strikes.
In addition, the Court notes that in an order dated January 19, 2006, in the case of Abraham and Savage v. DiGuglielmo, No. 06-58 (M.D. Pa. Doc. 4) (attached hereto as Exhibit 5), Plaintiff was denied Plaintiff IFP status because of the very same three strikes cited above plus a fourth. Moreover, in an apparent attempt to mislead the Middle District Court, Plaintiff filed a motion to reconsider (attached hereto as Exhibit 6) the court's order denying Plaintiff IFP status, wherein he provided the court with personal information purported to be his own, but which turned out to be his father's social security number and his father's date of birth. As well, in that same motion, Plaintiff stated that he "has never filed any civil actions in the Middle District Court." Id. However, notably, he did not claim that it was his father who had filed the cases. The motion for reconsideration was denied, the court refusing to credit Plaintiff's contentions in the face of docket evidence to the contrary. See Exhibit 7, attached hereto. Plaintiff filed an appeal from that order to the Court of Appeals. In that appeal, the Court of Appeals denied Plaintiff leave to proceed IFP on appeal. Abraham and Savage v. Diguglielmo, No. 06-2344 (3d Cir. Order dated 10/24/06) (wherein the Court noted that "Appellant does not dispute that he has brought at least three other cases in federal court that have been dismissed as lacking legal merit." (citing both Savage v. DeLong, and Savage v. Sokolowski)) (available on PACER).
In the face of the foregoing, the court cannot and does not credit the purported affidavit of Plaintiff's father. Furthermore, lest there be any confusion as to the fact that Plaintiff is the "junior" as in "Theodore Savage, Jr.", the Court takes judicial notice of the fact that Plaintiff's father refers to himself as "Theodore Savage Sr." See, e.g., Theodore B. Savage v. Blaine, No. 01-476 (M.D. Pa. Habeas case filed by Plaintiff, Doc. 1 at 31 wherein the father filed an affidavit identifying himself at "Theodore Savage, Sr.") (available on PACER).
Accordingly, the court finds, as a fact, based on the evidence before it, that Plaintiff herein has at least three strikes and, therefore, he must be denied IFP status and the case dismissed without prejudice to refiling.
In the alternative, the court finds that the final judgment inAbraham and Savage v. Diguglielmo, No. 06-58 (M.D. Pa.), which found that Plaintiff had at least three strikes, collaterally estops him from contesting those strikes in this case. See Jason Alexander Cosmetics, Inc. v. L'Oreal USA, Inc., 458 F.3d 244, 249 (3d Cir. 2006), petition for cert. filed, (U.S. Jan. 16, 2007) (No. 06-1001) (setting forth the requirements for collateral estoppel: (1) the identical issue was actually litigated and previously adjudicated; (2) the previous determination was necessary to the decision; and (3) the party now being precluded from relitigating the issue had a full and fair opportunity to litigate the issue previously). Here, the only requirement that arguably could be in dispute is whether Savage had a full and fair opportunity to litigate the issue; the other requirements are manifestly met. It appears clear that Savage had a full and fair opportunity to litigate the issue in the case of Abraham and Savage v. Diguglielmo, 06-58 (E.D. Pa.), because he received notice of which cases were counted as strikes, and he had an opportunity to be heard in that he contested the strikes before the Middle District Court, which, in a valid and final judgment, found against him. See, e.g., Kremer v. Chemical Const. Corp., 456 U.S. 461, 483 n. 24 (1982) (noting that "what a full and fair opportunity to litigate entails is the procedural requirements of due process" i.e., notice and an opportunity to be heard);Hofmann v. Pressman Toy Corp., 193 Fed.Appx. 121, 123 (3d Cir. 2006) (applying collateral estoppel and/or res judicata doctrines to pro se plaintiff, and declaring that "As Hofmann had a 'full and fair opportunity' to litigate this issue in her earlier case [even though she was pro se in the earlier case], the District Court correctly precluded her from raising it again.") (emphasis added). Consequently, the fact that Plaintiff was pro se in theAbraham and Savage v. Diguglielmo, No. 06-58, case does not mean that he was denied a full and fair opportunity to be heard. Accordingly, either because the court finds, as a fact, based on the evidence before it, that Plaintiff herein has three strikes or because Plaintiff is collaterally estopped from denying such, he must be denied IFP status and the case dismissed without prejudice to refiling. Hence, the following order is entered.
AND NOW, this 15th day of February, 2007,
IT IS HEREBY ORDERED that the Plaintiff's motion for leave to proceed in forma pauperis is DENIED and the case is DISMISSED albeit without prejudice to being refiled upon payment of the entire filing fee, so long as the payment of the filing fee occurs within the applicable statute of limitations. In other words, any re-filed case will not relate back to the current complaint.
IT IS FURTHER ORDERED that the Report and Recommendation (Doc. No. 2), filed on January 5, 2007 by Magistrate Judge Hay, is adopted as the opinion of the court, as supplemented by this memorandum order.
Lastly, I hereby certify pursuant to 28 U.S.C. § 1915(a)(3) and Rule 24 of the Federal Rules of Appellate Procedure, that any appeal from this action would not be taken in good faith for all of the reasons recounted above.
EXHIBIT 1
CIVIL ACTION-LAW JURY TRIAL DEMANDED
THEODORE SAVAGE, JR. * Plaintiff, * IN THE UNITED STATES DISTRICT COURT -VS- FOR THE MIDDLE DISTRICT OF PENNA. * DEAN D. W. DELONG TOM C. GERHARD * JOHN D. MOGILSKI WILLIAM F. JURACKA * Individually and respectively in NO. OF 19 their official Capacities * DEFENDANT'S *COMPLAINT PURSUANT TO 42 U.S.C. § 1983
I. PARTIES:a. Plaintiff Theodore Savage, Jr. is an adult individual confined in the State Correctional Institute at Frackville, Pennsylvania 18931, DOC # CB-2674.
b. Defendant Dean D.W. Delong is an adult individual employed by the County of Carbon as a Chairman of the Carbon County Prison Board, Carbon County Courthouse Annex, Jim Thorpe, Pennsylvania 18229.
c. Defendant Tom C. Gerhard is an adult individual employed by the County of Carbon as Vice-Chairman of the Carbon County Prison Board, Carbon County Courthouse Annex, Jim Thorpe, Pennsylvania 18229.
d. Defendant John D. Mogilski is an adult individual employed by the County of Carbon as a Commissioner, and Prison Board Member, Carbon COunty Courthouse Annex, Jim Thorpe, Pennsylvania 18229.
e. Defendant William F. Juracka is an adult individual employed by the County of Carbon as Warden of the Carbon County Prison, 128 W. Broadway, Jim Thorpe, Pennsyvania 18229.
II. STATEMENT OF CLAIM:
1. The plaintiff is a State Prisoner confined at the State Corr. Institute at Frackville, Pennsylvania where he is serving a 3 to 10 ear prison term imposed by the Court of Common Pleas of Luzerne County.
2. That on February 3, 1994, the plaintiff was transported from the State Correctional Institute at Frackville, and taken to the Carbon County Prison for sentencing under criminal information # 364 CR 1992.
3. That the plaintiff remained at the Carbon County Prison until February 7, 1994, at which time the Carbon County Sheriffs transported him back to S.C.I. at Frackville.
4. That at the Carbon County Prison, plaintiff was placed in cell number 16, which is located on the lower tier of the block.
5. The cell in question was very cold because there is no heating of any type on the lower tier, all cells on the lower tier are freezing cold at all time.
6. That none of the cells in the Carbon County Prison have any tpe of running "HOT" water.
7. That at the Carbon County Prison, the Law Library is not updated, nor is it sufficient to research or prepare legal documents. The only law books in the Law Library are "Vale Pennsylvania Digest" and "American Jurisprudence," it does not have any purdons titles 18, 42, 60, or 61, further it does not have the books manditory pursuant to 37 Pa. Code, namely the books stated above.
8. That the shower room ceiling is falling apart, paint falls all over prisoners as they shower, and plaintiff was hit in the head by various small pieces of paint and concrete.
9. That the Carbon County Prison is infested with verman, such as water bugs, mice and cock roaches.
10. That as a result of the freezing cold cell the plaintiff has gotten a very bad cold which he is being treated for by medical personel at the S.C.I. at Frackville.
11. That all defendant's to this action are in charge of the operation of and conditions of the Carbon County Prison, further, they are aware of these conditions and refuse to do anything to upgrade these poor, unsanitary, and cruel and unusual conditions.
12. That the conditions of the Carbon County Prison are unfit for human life, and they violated the plaintiffs right to be free from cruel and unusual punishment which is prohibited by the United States Const. Const. Amend. # 8.
13. That the law library is insufficient to protect the prisoners rights to adaquate access to the Courts, which violate the plaintiffs rights under the United States Constitution, Const. Amend. # 1.
14. That the conditions of the Carbon County Prison have not only violated the plaintiffs rights, but they continue to violate all present and future prisoners confined in the Carbon County Prison.
15. That the Carbon County Prison has been condemed atleast on (2) two occassions, and the defendant's refuse to upgrade these conditions stated herein.
III. RELIEF:
WHEREFORE, THE PLAINTIFF THEODORE SAVAGE, JR., REQUESTS THAT THE COURT GRANT HIM THE FOLLOWING RELIEF:
a. Declaratory judgment that the conditions of the Carbon County Prison violated the plaintiffs rights under the United States Constitution;
b. Issue an injunction upon the defendants directing them to upgrade the conditions of the Carbon County Prison by having them have heaters placed on the lower tier of the block, that directs them to have hot running water put in all cells, and that directs the defendants to have all law books placed in the prison law library that is required pursuant to 37 Pa. Code.
c. Punative damages from each defendant to the plaintiff in the amount of ten thousand dallars;
d. Compasatory damages from each defendant to the plaintiff in the amount of ten thousand dollars;
e. Trial by jury on all issues triable by jury;
f. Any other such relief as the Court deems proper and just in this matter.
And the plaintiff will forever pray, etc.
Respectfully submitted, BY: ___________________________________ Theodore Savage, Jr. Paralegal DOC # CB-2674 1111 Altamont Blvd. Frackville, PA 17931 DATED: February 8, 1994.AFFIDAVIT
I, THEODORE SAVAGE, JR., Plaintiff in the foregoing complaint, and I hereby declare under the penalties of perjury that the facts in the complaint are true and correct to the best of my personal knowledge, information and belief.
BY: __________________________________ THEODORE SAVAGE, JR., PARALEGAL DOC # CB-2674 1111 Altamont Blvd. Frackville, PA 17931 EXECUTED ON THIS 10th DAY OF February, 1994, AT THE S.C.I. AT FRACKVILLE, PENNSYLVANIA.EXHIBIT 2
Exhibit
Exhibit-A
Exhibit
Exhibit-B
CIVIL ACTION LAW THEODORE SAVAGE, JR. : PLAINTIFF, IN THE UNITED STATES DISTRICT : COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA -VS- : : DEAN D. W. DELONG, et, al., DEFENDANTS, : NO. OF 19AFFIDAVIT
I, the undersigned, hereby declare that I am a prisoner confined in the Carbon County Prison and that the following facts are true and correct:1. That the cells in the Carbon County Prison do not have any type of running hot water in them.
2. That the law library here at the Carbon County Prison only has the following law book therein:
a. "Vale Pennsylvania Digest", with no up to date pocket parts.
b. "Amercan Jurisprudence", with no up dated pocket parts.
3. That the law library does not have "ANY" volumes of the Purdons Pennsylvania Statutes.
4. That the lower tier of the Carbon County Prison does not have any type of heaters, and it is very cold on the lower tier and even colder in the cells on the lwer tier.
5. That the ceiling in the shower is deteriorating and falling apart.
6. That the Carbon County Prison is not fit for human living in that it is unclean and unsanitary.
7. That I have read this affidavit and the facts contained herein are true and correct, and I am a competent adult individual to observe same.
8. That I am signing this affidavit voluntarily and of my own free will with no theats being made to me by anyone.
I DECLARE UNDER THE PENALTIES OF PERJURY THAT THE FACTS IN THIS AFFIDAVIT ARE TRUE AND CORRECT IN SUBSTANCE AND IN FACT.
Respectfully submitted, (1) __________________________________ Prisoner Carbon County Prison (2) __________________________________ Prisoner Carbon County Prison (3) __________________________________ Prisoner Carbon County Prison (4) __________________________________ Prisoner Carbon County Prison (5) __________________________________ Prisoner Carbon County Prison (6) __________________________________ Prisoner Carbon County Prison DATED: February 6th, 1994. (7) __________________________________ Prisoner Carbon County Prison Witnessed this 6th day of February, 1994 BY: __________________________________ Theodore Savage, Jr., PARALEGALEXHIBIT 3
ExhibitEXHIBIT 4
Exhibit
EXHIBIT 5
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA EDWARD KANEL ABRAHAM, JR. : CIVIL ACTION THEODORE KING SAVAGE, J.D. : : : v. : : DAVID DIGUGLIELMO, et al . : NO. 06-0058
ORDER
AND NOW, this 19th day of January, 2006, in accordance with the accompanying memorandum, IT IS ORDERED that the motion for leave to proceed in forma pauperis, filed by Theodore King Savage, J.D., is DENIED pursuant to 28 U.S.C. § 1915(g). BY THE COURT: BRUCE W. KAUFFMAN, J. IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA EDWARD KAMEL ABRAHAM, JR. : CIVIL ACTION THEODORE KING SAVAGE, J.D. : : : v. : : DAVID DIGUGLIELMO, et al . : NO. 06-0058 __________________________________MEMORANDUM
KAUFFMAN, J. JANUARY 19, 2006 Plaintiff, Theodore King Savage, J.D., an inmate, is seeking to bring a pro se 42 U.S.C. § 1983 civil rights action without prepayment of fees. He alleges that he going to be transferred from S.C.I. Graterford to S.C.I. Cresson in retaliation for litigation that he has filed in this court. He also alleges that he has been denied the right to purchase magazines and newspapers because he is in the restricted housing unit.Pursuant to 28 U.S.C. § 1915(g), 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 forms pauperis status unless he is in imminent danger of serious physical injury at the time that the complaint is filed. Abdul-Akbar v. McKelvie, 239 F.3d 307 (3d Cir.), cert. denied, 533 U.S. 953 (2001).
Plaintiff, Theodore King Savage, J.D. has, prior to the instant action, filed four civil actions in the United States District Court for the Middle District of Pennsylvania which were dismissed as frivolous. Furthermore, nothing in this complaint suggests that he is in imminent danger of serious physical injury. Accordingly, the motion to proceed in forma pauperis, filed by plaintiff Theodore King Savage, J.D., will be denied.
The four civil actions filed by plaintiff, Theodore King Savage, J.D., were as follows: 1) Civil Action No. 94-0249 was dismissed as frivolous by order filed April 6, 1994, 2) Civil Action No. 90-1825 was dismissed as frivolous by order filed November 6, 1990, 3) Civil Action No. 89-1391 was dismissed as frivolous by order filed October 24, 1989, and 4) Civil Action No. 89-1244 was dismissed as frivolous by order filed September 26, 1989.
EXHIBIT 6
Exhibit
EXHIBIT 7
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA EDWARD KAMEL ABRAHAM, JR. : CIVIL ACTION THEODORE KING SAVAGE, J.D. : : : v. : : DAVID DIGUGLIELMO, et al . : NO. 06-0058