Santiago v. Superior Court of PA et al

Filing 8

ORDER - It is hereby ORDERED that: 1. Report of magistrate judge 7 ADOPTED in its entirety.; 2. Pltf's motion 2 for leave to proceed IFP DENIED.; 3. Pltf's complaint 1 DISMISSED w/out prejudice pursuant to 28 USC Section 1915(g).; 4. Clrk of Ct directed to CLOSE case.; 5. Any appeal from this order deemed frivolous & not taken in good faith. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 12/10/13. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DIMAS SANTIAGO,
Plaintiff,
v.
THE SUPERIOR COURT OF
PENNSYLVANIA, et al.,
Defendants.

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CIVIL ACTION NO. 1:13-CV-2689
(Chief Judge Conner)

ORDER
AND NOW, this 10th day of December, 2013, upon consideration of the report of
Magistrate Judge Thomas M. Blewitt (Doc. 7), recommending the court deny plaintiff’s
motion (Doc. 2) for leave to proceed in forma pauperis and dismiss without prejudice
plaintiff’s complaint (Doc. 1) pursuant to 28 U.S.C. § 1915(g) (the “three strikes rule”)
because plaintiff has previously had at least three civil actions dismissed as frivolous,
malicious or for failure to state a claim, see Santiago v. Saul, No. 1:12-cv-2007 (M.D. Pa.
Aug. 14, 2013); Santiago v. Lebanon Cnty. Prison, No. 1:13-cv-0292 (M.D. Pa. Aug. 13,
2013); Santiago v. Lebanon Cnty. Prison, No. 1:13-cv-0587 (M.D. Pa. July 10, 2013),1 and
has failed to satisfy the imminent danger exception to the three strikes as articulated in
Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir. 2001) (en banc), and is barred from
filing any future lawsuits in forma pauperis, and, following an independent review of the
record, it appearing that neither party has objected to the report, and that there is no
1

The court notes that on today’s date, a fourth case filed by the plaintiff was
dismissed pursuant to the three strikes rule. See Santiago v. SCI Camp Hill Med.
Dept. Psychiatry Name Unknown, No. 1:13-cv-2696 (M.D. Pa. Dec. 6, 2013).

clear error on the face of the record,2 see Nara v. Frank, 488 F.3d 187, 194 (3d Cir. 2007)
(explaining that “failing to timely object to [a report and recommendation] in a civil
proceeding may result in forfeiture of de novo review at the district court level”), it is
hereby ORDERED that:
1.

The report of the magistrate judge (Doc. 7) is ADOPTED in its entirety.

2.

Plaintiff’s motion (Doc. 2) for leave to proceed in forma pauperis is DENIED.

3.

Plaintiff’s complaint (Doc. 1) is DISMISSED without prejudice pursuant to
28 U.S.C. § 1915(g).

2

When parties fail to file timely objections to a magistrate judge’s report and
recommendation, the Federal Magistrates Act does not require a district court to
review the report before accepting it. Thomas v. Arn, 474 U.S. 140, 149 (1985). As a
matter of good practice, however, the Third Circuit expects courts to “afford some
level of review to dispositive legal issues raised by the report.” Henderson v.
Carlson, 812 F.2d 874, 878 (3d Cir. 1987). The advisory committee notes to Rule
72(b) of the Federal Rules of Civil Procedure indicate that “[w]hen no timely
objection is filed, the court need only satisfy itself that there is no clear error on the
face of the record in order to accept the recommendation.” FED . R. CIV . P. 72(b),
advisory committee notes; see also Henderson, 812 F.2d at 878-79 (stating that “the
failure of a party to object to a magistrate’s legal conclusions may result in the loss
of the right to de novo review in the district court”); Tice v. Wilson, 425 F. Supp. 2d
676, 680 (W.D. Pa. 2006) (holding that the court’s review is conducted under the
“plain error” standard); Cruz v. Chater, 990 F. Supp. 375-78 (M.D. Pa. 1998) (holding
that the court’s review is limited to ascertaining whether there is “clear error on the
face of the record”); Oldrati v. Apfel, 33 F. Supp. 2d 397, 399 (E.D. Pa. 1998) (holding
that the court will review the report and recommendation for “clear error”). The
court has reviewed the magistrate judge’s report and recommendation in
accordance with this Third Circuit directive.

4.

The Clerk of Court is directed to CLOSE this case.

5.

Any appeal from this order is deemed to be frivolous and not taken in good
faith. See 28 U.S.C. § 1915(a)(3).

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania