Parker v. Bizzozo et al

Filing 16

MEMORANDUM ORDER ADOPTING REPORT AND RECOMMENDATIONS ; ORDER DISMISSING CASE, without prejudice.Signed by Honorable A. Richard Caputo on 6/20/16. (jam)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JASON PARKER,
CIVIL ACTION NO. 3:15-CV-2187

Plaintiff,

(JUDGE CAPUTO)

v.
IRENE BIZZOZO, et al.,

(MAGISTRATE JUDGE SCHWAB)

Defendants.
MEMORANDUM ORDER
Presently before me is the Report and Recommendation of Magistrate Judge
Schwab (Doc. 13) with respect to a motion for leave to proceed in forma pauperis (Doc. 7)
filed by Plaintiff Jason Parker. Magistrate Judge Schwab recommends that Plaintiff’s
motion be denied and that his complaint be dismissed without prejudice to Plaintiff re-filing
the complaint if he pays the requisite filing fee. Because I agree that Plaintiff is not entitled
to proceed in forma pauperis under 28 U.S.C. § 1915(g), I will adopt the Report and
Recommendation in full.

Plaintiff’s motion will be denied and his complaint will be

dismissed without prejudice.
I. Legal Standard
Where objections to the Magistrate Judge's Report and Recommendation are
filed, the district court must conduct a de novo review of the contested portions of the
report. Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir.1989) (citing 28 U.S.C. §
636(b)(1)(C)). However, this only applies to the extent that a party's objections are both
timely and specific. Goney v. Clark, 749 F.2d 5, 6–7 (3d Cir.1984). In conducting a de
novo review, the court may accept, reject, or modify, in whole or in part, the factual
findings or legal conclusions of the magistrate judge. 28 U.S.C. § 636(b)(1); Owens v.
Beard, 829 F. Supp. 736, 738 (M.D. Pa. 1993). Although the review is de novo, the law
permits the court to rely on the recommendations of the magistrate judge to the extent it
deems proper. United States v. Raddatz, 447 U.S. 667, 675–76 (1980); Goney, 749

F.2d at 7. Uncontested portions of the report may be reviewed at a standard determined
by the district court. See Thomas v. Arn, 474 U.S. 140, 154 (1985). At the very least,
the court should review uncontested portions for clear error or manifest injustice. Cruz v.
Chater, 990 F. Supp. 375, 376–77 (M.D. Pa. 1998).
II. Background
On November 16, 2015, Plaintiff filed a complaint against what he refers to as the
“Supreme Court of Penn[sylvania] Midd[le] Dist[rict]” as well as the following officials or
employees: Prothonotary Irene Bizzozo, Esq., Deputy Prothonotary Amy Dreibelbis, Esq.,
Chief Clerk Elizabeth E. Zisk, Esq., and the Justices of the Pennsylvania Supreme Court.
(Doc. 1.) On that same day, Plaintiff also filed a motion for leave to proceed in forma
pauperis. (Doc. 2.) However, when filing his application, Plaintiff used a form from the
Eastern District of Pennsylvania. He later corrected this error and filed the application used
by this Court on November 27, 2015. (Doc. 7.) On May 23, 2016, Magistrate Judge
Schwab issued the instant Report and Recommendation, recommending that Plaintiff’s
application be denied and that his complaint be dismissed without prejudice to him re-filing
it with the requisite filing fee. (Doc. 13.)
III. Discussion
The purpose of the federal in forma pauperis statute is to “ensure that indigent
litigants have meaningful access to the federal courts.” Ball v. Famiglio, 726 F.3d 448,
451 (3d Cir. 2013). Thus, federal courts may “authorize the commencement,
prosecution or defense of any suit . . . without prepayment of fees or security therefor.”
28 U.S.C. § 1915(a)(1). However, to ensure that this provision does not result in the
“tide of substantively meritless” claims from prisoners, Congress enacted the Prison
Litigation Reform Act in 1996. Ball, 726 F.3d at 452 (citation and internal quotation
marks omitted). This includes a “three strikes” provision, which provides that “if the

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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,” he is not entitled to proceed in forma pauperis under the statute, unless he is
“under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). Nothing in this
provision blocks a prisoner’s access to the federal courts; it only “denies the prisoner the
privilege of filing before he has acquired the necessary filing fee.” Abdul-Akbar v.
McKelvie, 239 F.3d 307, 314 (3d Cir. 2001) (en banc).
Magistrate Judge Schwab recommends that Plaintiff’s motion be denied because
he falls within the scope of this “three strikes” rule. (Doc. 13, at 5-8.) For example, on
March 18, 2015, Judge Goldberg, of the United States District Court for the Eastern
District of Pennsylvania, dismissed with prejudice a complaint filed by Plaintiff for failure
to state a claim. See Parker v. Nutter, et al., 2:14-cv-07113 (E.D. Pa.) (Doc. 2). Judge
Goldberg similarly dispensed with two (2) other cases filed by Plaintiff in September of
2015. See Parker v. O’Connor, et al., 2:15-cv-03475 (E.D. Pa.) (Docs. 14 & 15) (Sept.
17, 2015) (dismissing Plaintiff’s complaint with prejudice as “frivolous, malicious, and for
failure to state a claim”); Parker v. Montgomery Cty. Corr. Facility, et al., 2:15-cv-04205
(E.D. Pa.) (Docs. 6 & 7) (Sept. 17, 2015) (dismissing Plaintiff’s complaint with prejudice
for failure to state a claim). Given Plaintiff’s record of filing cases that have been
dismissed as frivolous and for failure to state a claim, he falls within the “three strikes”
rule.1 Plaintiff has not objected to this portion of the Report and Recommendation.
However, Plaintiff appears to suggest that he falls within an exception to the

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Noting that Plaintiff had “three strikes” under Section 1915(g), Judge Goldberg
also denied Plaintiff in forma pauperis status in December of 2015. See Parker v.
Shutter, et al., 2:15-cv-05429 (E.D. Pa.) (Doc. 2) (Dec. 22, 2015).
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“three strikes” rule. A prisoner may circumvent this rule if, at the time the action is filed,
he or she is under imminent danger of serious physical injury. 28 U.S.C. § 1915(g);
Abdul-Akbar, 239 F.3d at 314. Plaintiff fails to meet this exception. In his motion for
leave to proceed in forma pauperis, Plaintiff failed to indicate whether he was seeking
relief while “under imminent danger of serious physical injury.” (Doc. 7, at 2.) Noting
this in her Report and Recommendation, Magistrate Judge Schwab stated that Plaintiff
failed to meet this exception and recommended that his motion be denied. She also
explained that his Complaint was “bereft of any assertion of imminent physical injury.”
(Doc. 13, at 8.)
On June 3, 2016, Plaintiff filed a document with this Court entitled “Application for
Imminent Danger.” (Doc. 14.) On June 7, 2016, I issued an Order explaining that this
document is not authorized by the Federal Rules of Civil Procedure. (Doc. 15.)
However, I did review the document and found that there was no allegation of imminent
danger and that it did not warrant the granting of any relief. (Id.) I further noted that
because this document was filed within the time allotted for objections to the Report and
Recommendation, I would consider this document as Plaintiff’s objections. (Id.)
As explained in my Order (Doc. 15) and by Magistrate Judge Schwab in her
Report and Recommendation, Plaintiff fails to allege any danger that is imminent for him
to fall within the exception to the “three strikes” rule. Rather, the events about which
Plaintiff complains are a variety of adverse events that could occur in the event other
things occur. He also does not allege that they will occur on any sort of imminent basis.
Plaintiff’s Complaint similarly lacks any allegation of imminent physical injury. Because
Plaintiff has accumulated at least three “strikes” under Section 1915(g) and because he
fails to meet the imminent danger exception to this “three strikes” rule, his motions for
leave to proceed in forma pauperis will be denied. Plaintiff’s complaint will be dismissed
without prejudice to him re-filing his complaint with the requisite filing fee.
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IV. Conclusion
For the above stated reasons, Plaintiff’s motion for leave to proceed in forma
pauperis will be denied and his complaint will be dismissed without prejudice.
NOW, this 20th day of June, 2016, IT IS HEREBY ORDERED that Magistrate Judge
Schwab’s Report and Recommendation (Doc. 13) is ADOPTED in its entirety. Plaintiff’s
Motion for Leave to Proceed in forma pauperis (Doc. 7) is DENIED. Plaintiff’s Complaint
(Doc. 1) is DISMISSED without prejudice to Plaintiff re-filing the Complaint with the
required filing fee.

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge

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