CARTER v. KANE et al

Filing 15

ORDER adopting 13 Report and Recommendations. Signed by Judge Barbara Rothstein on 9/13/16. (Rothstein, Barbara)

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UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF PENNSYLVANIA

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HOWARD CARTER,

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Plaintiff,
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v.
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KATHLEEN KANE, et al.,
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Defendants.
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____________________________________)

CA. NO.

16-36 Erie

ORDER ADOPTING REPORT
AND RECOMMENDATION
AND DISMISSING CASE

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ORDER ADOPTING REPORT AND RECOMMENDATION
The Court, having reviewed the Report and Recommendation of the Honorable Susan P.
Baxter, United States Magistrate Judge, Plaintiff’s Objections thereto, and the balance of the

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record, does hereby find that:
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(1)

Plaintiff filed this civil rights action on February 10, 2016. Along with this action,

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Plaintiff has filed six other lawsuits in this Court, Case Nos. 16-7, 16-31, 16-32,

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16-33, 16-34, and 16-35;
(2)

By Order dated February 18, 2016, the Magistrate Judge directed Plaintiff to pay
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the filing fee for the instant case or seek leave to proceed in forma pauperis

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before March 1, 2016, or risk dismissal of this case for failure to prosecute.

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Plaintiff did not comply. On March 10, 2016, the Magistrate Judge directed

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Plaintiff to show cause for his failure to pay the filing fee or seek leave to proceed

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in forma pauperis. The Order further directed Plaintiff to provide a USM285 form

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for each named Defendant in this action. The Order expressly warned that

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Plaintiff’s failure to comply before March 24, 2016, would result in the dismissal

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of this action due to Plaintiff’s failure to prosecute. On March 28, 2016, Plaintiff

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filed a motion seeking leave to proceed in forma pauperis. Plaintiff’s motion did

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not contain the requisite institutional account statement, nor did Plaintiff submit

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the required USM285 forms. By Order dated May 17, 2016, Plaintiff was direct to

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file his institutional account statement in support of his motion for in forma

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pauperis status. Plaintiff was given until June 17, 2016, to do so. The Order

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warned that Plaintiff’s failure to comply would result in the dismissal of this

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action for failure to prosecute. Plaintiff failed to comply so the Magistrate Judge

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issued the Report and Recommendation recommending that this Court dismiss the

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instant lawsuit;

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(3)

The

Court

has

reviewed

Plaintiff’s

Objections

to

the

Report

and

Recommendation. First, the Court notes that the Objections are not timely, filed
six days after the deadline for filing objections expired. Next, Plaintiff claims that

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he did file the requisite institutional account statement and the required USM285
forms. The docket belies this statement. The Court notes that Plaintiff did file a
second motion to proceed in forma pauperis on June 13, 2016, but the portion of
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the form that is supposed to be filed out by a prison official regarding Plaintiff’s

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institutional account is blank. Lastly, Plaintiff uses the remainder of his Objection

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to re-allege the complaints set forth in his complaint, allegations that are not

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relevant to the Court’s orders to show cause. Applying the six-factor balancing

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test as set out by the Third Circuit in Poulis v. State Farm Fire & Casualty Co.,

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747 F.2d 863 (3d Cir. 1984), the Court finds that dismissal of this case is

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warranted for the reasons set forth in the Report and Recommendation;
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(4)

Based on the foregoing, the Court HEREBY ADOPTS the Report and

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Recommendation;

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(5)

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Plaintiff’s motions to proceed in forma pauperis are HEREBY DENIED and this
case is DISMISSED in its entirety;

(6)

The Clerk of the Court is respectfully directed to send copies of this Order to
Plaintiff, Defendants, and to Judge Baxter.

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IT IS SO ORDERED.
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DATED this 13th day of September, 2016.

A

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Barbara Jacobs Rothstein
U.S. District Court Judge

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