PEW v. SIMMONS, et al

Filing 14

MEMORANDUM ORDER vacating 7 Order granting 2 Motion for Leave to Proceed in forma pauperis; further denying 2 Motion for Leave to Proceed in forma pauperis and dismissing this case without prejudice to plaintiff's right to reopen by paying the full $400 filing fee; and further adopting 9 Report and Recommendations of Magistrate Judge Lenihan as the opinion of the Court. The Clerk shall mark this case CLOSED. Signed by Judge David S. Cercone on 5/18/16. (njt)

IN THE UNITED ST ATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ALFONSO PERCY PEW, Mental
Health Inmate Stability Code C,

V.

1: 16cv60
Electronic Filing

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Plaintiff,

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Judge David Stewart Cercone
Magistrate Judge Lisa Pupo Lenihan

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BRUCE SIMMONS and UNKNOWN
DOE,
Defendants.

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MEMORANDUM ORDER
Plaintiff, Alfonso Percy Pew ("Plaintiff'), initiated this action in the United States
District Court for the Eastern District of Virginia on February 9, 2016, with the filing of a civil
rights complaint and a motion for leave to proceed in forma pauperis ("IFP"). (ECF Nos. 1, 2.)
Because venue was improper in that district, the Eastern District of Virginia transferred the case
to this Court on March 16, 2016. (ECF No. 4.) On April 7, 2016, Plaintiffs IFP motion was
mistakenly granted. (ECF No. 7.) On April 18, 2016, the case was reassigned to United States
Magistrate Judge Lisa Pupo Lenihan for review in accordance with the Magistrate Judges Act,
28 U.S.C. § 636(b)(l), and Local Rules of Court 72.C and 72.D.
On April 21, 2016, the Magistrate Judge issued a Report and Recommendation wherein
she recommended that the Order granting Plaintiffs IFP motion be vacated and that his IFP
motion be denied in accordance with 28 U.S.C. § 1915(g). (ECF No. 9.) The Magistrate Judge
determined that Plaintiff had incurred three or more "strikes," and, therefore, pursuant to the
dictates of 28 U.S.C. § 191 S(g), he cannot proceed informa papueris. She also determined that

Plaintiff had not met the threshold showing of imminent danger of serious physical injury in
order to avail himself of the "imminent danger" exception to § 191 S(g). It was therefore
recommended that this action be dismissed without prejudice and reopened when Plaintiff paid
the full $400.00 filing fee. Id.
Plaintiff filed timely Objections to the Magistrate Judge's Report and Recommendation.
(ECF No. 12.) In his Objections, Plaintiff states that he meets the imminent danger exception to
28 U.S.C. § 191 S(g) because the cold air that blows out of the vents in his cell exacerbate his
many diseases, including spinal degeneration, sciatic nerve damage, and arthritis. Plaintiff
complains that he is being denied long johns, thermals and an extra blanket. Although being
subjected to cold temperature can indeed be uncomfortable, this does not put Plaintiff in such
imminent danger of serious physical injury so as to rise to something akin to a genuine
emergency. Furthermore, the exhibits submitted by Plaintiff in support of his Objections
demonstrate that there is no clinical need for medical to approve Plaintiff state issued long johns
or an extra blanket because Plaintiff does not have clinically proven impaired circulation and his
x-rays show that he suffers only from "modest osteoarthritis of the lumbar spine." (Pl.'s Ex. F;
ECF No. 12-6.) Therefore, upon an independent review of the record and consideration of the
Magistrate Judge's Report and Recommendation, and Objections thereto, the following Order is
entered.
AND NOW, this

lZ__ day of May, 2016,

IT IS HEREBY ORDERED that the Order granting Plaintiffs IFP motion (ECF No. 7)

is vacated and Plaintiffs IFP motion (ECF No. 2) is hereby denied in accordance with 28 U.S.C.
§1915(g).

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IT IS FURTHER ORDERED that this case is dismissed without prejudice to Plaintiff's
right to reopen it by paying the full $400.00 filing fee.
IT IS FURTHER ORDERED that the Magistrate Judge's Report and Recommendation
(ECF No. 9) is adopted as the Opinion of the Court.
IT IS FURTHER ORDERED that the Clerk of Court mark this case CLOSED.
AND IT IS FURTHER ORDERED that pursuant to Rule 4(a)(l) of the Federal Rules
of Appellate Procedure, Petitioner has thirty (30) days to file a notice of appeal as provided by
Rule 3 of the Federal Rules of Appellate Procedure.

David Stewart Cercone
United States District Judge
cc:

Honorable Lisa Pupo Lenihan
United States Magistrate Judge
Alfonso Percy Pew
BT-7263
SCI Forest
PO Box 945
Marienville, PA 16239
(Via First Class Mail)

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