Opinion
Civil Action No. 20-174
04-09-2020
ANTHONY J. SCICCHITANO, JR., Plaintiff, v. WASHINGTON, PENNSYLVANIA, WASHINGTON COUNTY D.A. OFFICE, and WASHINGTON COUNTY PUBLIC DEFENDERS OFFICE, Defendants.
District Judge David Stewart Cercone/Magistrate Judge Maureen P. Kelly Re: ECF No. 3 REPORT AND RECOMMENDATION
I. RECOMMENDATION
It is respectfully recommended that Plaintiff's Motion for Leave to Proceed In Forma Pauperis (the "IFP Motion"), ECF No. 3, be denied.
II. REPORT
Anthony J. Scicchitano ("Plaintiff") is currently incarcerated at the State Correctional Institution in Albion ("SCI-Albion"), located in Albion, Pennsylvania. Plaintiff seeks leave to proceed in forma pauperis in order to file a civil rights complaint in this Court, naming as defendants: Washington, Pennsylvania; the Washington County District Attorney's Office; and the Washington County Public Defender's Office, for actions or inactions taken before and during the course of his criminal trial. While Plaintiff does not indicate in his complaint when his trial in Washington County occurred, the Court takes judicial notice of the fact that, according to the criminal dockets of the of Washington County Court of Common Pleas, Plaintiff's most recent criminal trial on two different sets of charges in that county resulted in his conviction in 2011 on multiple charges involving sexual abuse. ECF No. 1-1.
The dockets of Plaintiff's two most recent criminal cases in the Court of Common Pleas of Washington County are available at:
Plaintiff has previously filed several prisoner civil rights actions in federal court, which were dismissed as frivolous or for failure to state a claim upon which relief can be granted. As a consequence, he has acquired "three strikes," in contravention of 28 U.S.C. § 1915(g), and cannot proceed in forma pauperis ("IFP") in the present case. Plaintiff does not come within the three strikes exception as the proposed complaint fails to demonstrate that Plaintiff is in imminent danger of serious physical injury.
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.").
In considering Plaintiff's pending IFP Motion, this Court takes judicial notice of court records and dockets of the federal courts located in the Commonwealth of Pennsylvania. 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 courts reveals that Plaintiff has accumulated at least "three strikes" within the contemplation of 28 U.S.C. § 1915(g) 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).
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).
The three strikes that Plaintiff has accumulated are as follows. The first strike is Scicchitano v. Cooke, No. 15-CV-552 (W.D. Pa. order dismissing complaint pre-service for failure to state a claim upon which relief can be granted, filed 8/3/2015 at ECF No. 16). The second strike is Scicchitano v. Uniontown Police Dept., No. 15-CV-1163 (W.D. Pa. order dismissing complaint for failure to state a claim upon which relief can be granted, filed 11/12/2015 at ECF No. 7). The third strike is Scicchitano v. Chestnut Ridge Counseling Services, No. 16-CV-53 (W.D. Pa. order dismissing complaint for failure to state a claim upon which relief may be granted, filed on 3/10/2016 at ECF No. 7).
Because Plaintiff has at least three strikes he may not proceed IFP, unless "the prisoner is under imminent danger of serious physical injury" as revealed by the complaint because imminent danger of physical injury must be assessed as of the time of filing the application for leave to proceed IFP and/or the complaint. See Abdul-Abkar v. McKelvie, 239 F.3d 307 (3d Cir. 2001); Banos v. O'Guin, 144 F.3d 883, 884 (5th Cir. 1998)("The plain language of the statute [i.e., Section 1915(g)] leads us to conclude that a prisoner with three strikes is entitled to proceed with his action or appeal only if he is in imminent danger at the time that he seeks to file his suit in district court or seeks to proceed with his appeal or files a motion to proceed IFP.").
In the instant complaint, Plaintiff does not allege any imminent danger of serious physical injury arising from the individuals that he names as Defendant. In fact, he cannot allege the requisite imminent danger because he is not in Defendants' custody or control. Barren v. U.S. Dept. of Justice, 2:19-CV-97, 2019 WL 1116954, at *3 (W.D. Pa. Feb. 19, 2019) ("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."), report and recommendation adopted, 2:19-CV-97, 2019 WL 1116213 (W.D. Pa. Mar. 11, 2019), superseded, 2:19-CV-97, 2019 WL 1651627 (W.D. Pa. Apr. 17, 2019), appeal dismissed sub nom. Barren v. DOJ, 19-2067, 2019 WL 5884527 (3d Cir. July 11, 2019), and report and recommendation adopted, 2:19-CV-97, 2019 WL 1651627 (W.D. Pa. Apr. 17, 2019), and appeal dismissed sub nom. Barren v. DOJ, 19-2067, 2019 WL 5884527 (3d Cir. July 11, 2019); Pickens v. Nunn, 2:04-CV-0085, 2004 WL 909442, at *1 (N.D. Tex. Apr. 20, 2004) ("Given plaintiff's transfer from the Clements Unit, where all of the defendants are located, to the McConnell Unit, plaintiff is suing defendants in whose custody and control he no longer resides and who cannot place him in imminent danger of serious physical injury. Plaintiff has alleged no fact fulfilling the statutory exception...").
The gravamen of Plaintiff's complaint is that before and during his trial in the Court of Common Pleas of Washington County (which trial he does not specify), he was taking medications for a mental health condition, which should have required all the participants in his trial, i.e., the judge, the prosecutor and the public defender, to suspend his trial. ECF No. 1-1 at ¶ 9 ("While on the stand the Public Defender asked the plaintiff, if he had any mental condition and if he was on any medications, at that time. The plaintiff told him yes. The plaintiff told him what was wrong and what medications he was on at that time. 'Upon information and belief,' the Washington County Courts and the Washington County D.A. office, should have put the trial on hold until the plaintiff was seen by a doctor."). Furthermore, Plaintiff alleges the Defendants' failure to immediately stop the trial so that Plaintiff could be evaluated by a doctor violated his federal rights including rights he allegedly possessed under the Americans with Disabilities Act. These allegations fail to show any imminent danger of serious physical injury to Plaintiff at the time of the filing of this lawsuit, which we deem to be, at the earliest, February 2, 2020, the date on which Plaintiff signed his complaint, some nine years after his most recent trial.
Because Plaintiff has failed to carry his burden to show that he is in imminent danger of serious physical injury, at the time of filing this civil action, which would permit him to proceed IFP, the IFP motion should be denied. If the District Court adopts this Report and Recommendation, Plaintiff may pay the entire filing fee within a time certain or face dismissal of this action for failure to prosecute.
III. CONCLUSION
For the reasons set forth herein, it is recommended that the pending IFP Motion, ECF No. 3, be denied.
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: April 9, 2020 cc: The Honorable David Stewart Cercone
United States District Judge
ANTHONY J. SCICCHITANO, JR.
KB-9484
S.C.I. Albion
10745 Route 18
Albion, PA 16475-0001
https://ujsportal.pacourts.us/DocketSheets/CPReport.ashx?docketNumber=CP-63-CR-0000319-2010&dnh=PV%2b2UFXKRGr2wFot7n3Y2Q%3d%3d
https://ujsportal.pacourts.us/DocketSheets/CPReport.ashx?docketNumber=CP-63-CR-0000320-2010&dnh=bcI%2bJ5gFWwO0yfrZz2BTnA%3d%3d
(sites last visited April 8, 2020).