Opinion
Civil Action No. 2:19-cv-97
02-19-2019
DAVID MORRIS BARREN, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE; UNITED STATES DRUG ENFORCEMENT ADMINISTRATION; CHARLES J. PETERS, individually and in their official capacity; BRIAN AVERI, individually and in their official capacity; CLIFFORD BROWN, individually and in their official capacity; MICHAEL GERACI, individually and in their official capacity; SUSAN CONINE, individually and in their official capacity; DOUG YOUHOUSE, individually and in their official capacity; WILKINSBURG POLICE DEPARTMENT; JOHN HIERONYMUS, individually and in their official capacity; and UNKNOWN SENIOR ATTORNEY, individually and in their official capacity, Defendants.
Judge Nora Barry Fischer/Magistrate Judge Maureen P. Kelly Re: ECF No. 2 REPORT AND RECOMMENDATION
I. RECOMMENDATION
It is recommended that the Motion for Leave to Proceed In Forma Pauperis ("the IFP Motion"), ECF No. 2, be denied because David Morris Barren ("Plaintiff") has acquired at least three strikes and thus is not permitted to proceed in forma pauperis ("IFP") and his proposed Complaint does not reveal an imminent risk of serious physical injury.
II. REPORT
The current civil action pending before this Court was transferred here by the United States District Court for the District of Columbia. ECF No. 4. The transferring court did not address the pending IFP Motion, ECF No. 2.
According to the federal Bureau of Prisons ("BOP") inmate locator website, Plaintiff is currently incarcerated in the Federal Correctional Institution at Loretto ("FCI-Loretto"). While serving his federal sentence, Plaintiff filed several civil actions in the federal courts, suing various defendants, as well as filing appeals in the federal courts. As a consequence of his litigation history, Plaintiff has acquired at least "three strikes" and is not permitted to proceed IFP. Therefore, it is recommended that the instant IFP Motion be denied and that Plaintiff be ordered to pay the filing fee within a time certain or face dismissal of the case for failure to prosecute.
The BOP Inmate Locator website is found at:
https://www.bop.gov/inmateloc/(site last visited 2/19/2019). However, we note that Plaintiff's address of record is at FCI-Hazelton in West Virginia. Apparently between the time Petitioner's case was filed in the District of Columbia and the time it was transferred to here, Petitioner himself was transferred to his current prison. The Court will send this Report to both addresses. Plaintiff should file a formal change of address with this Court.
A. Plaintiff Has at Least Three Strikes.
It is a plaintiff's burden to prove entitlement to IFP status. See White v. Gregory, 87 F.3d 429, 430 (10th Cir. 1996); New Assessment Program v. PNC Corp., No. Civ.A. 95-6059, 1995 WL 592588, at *1 (E.D. Pa. Oct. 3, 1995); In re Lassina, 261 B.R. 614, 618 (E.D. Pa. 2001) ("The applicant bears the burden of proving her entitlement to IFP relief by a preponderance of the evidence."). A plaintiff who has three strikes, bears the burden of showing that he is in "imminent danger of serious physical injury." Bullock v. Berrier, No. CIV.A. 15-1J, 2015 WL 5439207, at *3 (W.D. Pa. Sept. 15, 2015) ("it is for this Court to resolve the question of whether Plaintiff has carried his burden to show imminent danger of serious physical injury.") (footnote omitted).
In considering the pending IFP Motion, this Court takes judicial notice of the records and dockets of the federal courts. DiNicola v. DiPaolo, 945 F. Supp. 848, 854 n.2 (W.D. Pa. 1996) (court is entitled to take judicial notice of public records). A review of the electronic dockets of these federal courts reveals that Plaintiff has accumulated at least three "strikes" within the contemplation of 28 U.S.C. § 1915(g)2 which provides in relevant part that:
Abdul-Akbar v. McKelvie, 239 F.3d 307, 310 (3d Cir. 2001) (noting that 28 U.S.C. § 1915(g) is "popularly known as the 'three strikes' rule"), cert. denied, 533 U.S. 953 (2001).
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
In this case, Plaintiff is a "prisoner" within the meaning of 28 U.S.C. § 1915(g). Plaintiff's three strikes are as follows:
The term prisoner as used in Section 1915 means "any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program." 28 U.S.C. § 1915(h).
1) Barren v. Pa. State Police, No. 3:14-cv-134 (W.D. Pa., ECF No. 7, Report and Recommendation, recommending pre-service dismissal of complaint for failure to state a claim, ECF No. 10, order adopting R and R and dismissing case with prejudice before service pursuant to 28 U.S.C. § 1915(d) filed on Sept. 19, 2014, 1991), aff'd, 14-4221 (3d Cir. order filed 6/18/2015);
2) Barren v. Pa. State Police, No. 14-4221 (3d Cir., Order dismissing appeal pursuant to 1915e(2)(B)(i) filed on June 18, 2015);Accordingly, Plaintiff, having acquired three strikes prior to filing the instant case, may not proceed in forma pauperis unless he can show "imminent danger of serious physical injury."
3) Barren v. Allegheny County, No. 2:14-cv-692 (W.D. Pa., ECF No. 8, Report and Recommendation, recommending pre-service dismissal of the Complaint for failure to state a claim upon which relief could be granted, and ECF No. 14, adopting the Report and Recommendation and dismissing the Complaint and the Amended Complaint for failure to state a claim upon which relief could be granted, filed on September 4, 2014), aff'd, 14-3994 (3d Cir. order filed June 12, 2015).
B. The Complaint Fails to Show Imminent Danger of Serious Physical Injury.
"Imminent danger" of serious physical injury is measured at the time of the filing of the civil action. Abdul-Abkar v. McKelvie, 239 F.3d 307 (3d Cir. 2001) (imminent danger of physical injury must be assessed as of the time of filing the complaint). Pursuant to the prisoner mail box rule, this civil action is deemed to have been filed on November 20, 2018, the date on which Plaintiff signed his IFP Motion. ECF No. 2 at 2.
In the proposed Complaint, Plaintiff names various defendants all of whom were somehow involved in the investigation of Plaintiff for a drug conspiracy, which investigation began, according to the proposed Complaint, in November 2004, culminating in a grand jury indictment in or around January 31, 2008, which lead to Petitioner being arrested on February 20, 2008 and ultimately convicted in federal court. Incident to the arrest, Petitioner's vehicle was searched without a warrant, and items of his property were allegedly taken wrongfully and ultimately illegally forfeited on or about July 3, 2008. Plaintiff further alleges that he only recently became aware of the "forfeiture executed by Defendant-Hieronymus" and only on April 3, 2017, did he "discover[] the DEA's forfeiture executed by Defendant-Unknown Senior Attorney." ECF No. 1 ¶¶ 51 -52.
Not only does the proposed Complaint fail to demonstrate imminent danger, it fails to demonstrate any danger of serious physical injury at all insofar as the proposed Complaint concerns actions taken long ago by the defendants, none of whom have immediate custody of Plaintiff.
III. CONCLUSION
For the reasons set forth herein, it is recommended that the pending IFP Motion be denied. If the District Court adopts this Report and Recommendation, Plaintiff, of course, may thereafter pay the entire filing fee within a time certain or face dismissal of the Complaint for failure to prosecute.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.
RESPECTFULLY SUBMITTED:
/s/Maureen P. Kelly
MAUREEN P. KELLY
UNITED STATES MAGISTRATE JUDGE Date: February, 19, 2019 cc: The Honorable Nora Barry Fischer
United States District Judge
DAVID MORRIS BARREN
09803-068
FCI-Loretto
Federal Correctional Institution
P.O. BOX 1000
LORETTO, PA 15940
DAVID MORRIS BARREN
09803-068
HAZELTON
U.S. PENITENTIARY
Inmate Mail/Parcels
P.O. BOX 2000
BRUCETON MILLS, WV 26525