BAILEY v. OVERMEYER et al

Filing 67

ORDER granting 20 Motion to Revoke Plaintiff's in forma pauperis status; adopting Report and Recommendations re 49 Report and Recommendations. The Courts previous Order granting Plaintiff in forma pauperis status [Dkt. 3] is VACATED; Plaintiffs Motion to Proceed in forma pauperis [Dkt. 1] is DENIED; This case is DISMISSED WITHOUT PREJUDICE; This case is CLOSED.Signed by Judge Barbara Rothstein on 4/11/2017. (nk)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
AT ERIE
DEMETRIUS BAILEY,

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Plaintiff,
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v.
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MICHAEL OVERMYER, et al.,
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Defendants.
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____________________________________)

Civil Action No. 16-86

ORDER

ORDER ADOPTING REPORT AND RECOMMENDATION AND REVOKING
PLAINTIFF’S IN FORMA PAUPERIS STATUS
Before the Court is the Report and Recommendation (“R&R”) of the Honorable Susan
Paradise Baxter, United States Magistrate Judge, recommending that the Court grant Defendants’
motion to revoke Plaintiff’s in forma pauperis status [Dkts. 20, 24]; vacate the previous Order
granting Plaintiff in forma pauperis status [Dkt. 3]; deny Plaintiff’s Motion to Proceed in forma
pauperis [Dkt. 1]; and dismiss this action without prejudice to Plaintiff’s right to reopen by paying
the full $400 filing fee. Dkt. 49. Specifically, the R&R states that Plaintiff previously filed three
cases that were dismissed as failing to state a claim. Id. at 5 (citing Bailey v. Price, No. 2:99-cv470 (W.D. Pa. 1999); Bailey v. Crisanti., No. 2:00-cv-1310) (W.D. Pa. 20000); Bailey v. Rozum,
No. 3:13-cv-78 (W.D. Pa. 2015)). Thus, the R&R states, Plaintiff has accumulated “three strikes”
within the contemplation of the Prison Litigation Reform Act (“PLRA”). Id. at 2-5 (citing 28
U.S.C. § 1915(g)). Plaintiff filed objections to the R&R. Dkt. 53. When a party objects to an
R&R, the district court must review de novo those portions of the R&R to which objection is made.
See United States v. Raddatz, 447 U.S. 667, 673 (1980); Fed. R. Civ. P. 72(b). However, to obtain

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de novo review, a party must clearly and specifically identify those portions of the R&R to which
it objects. Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984). The district court may accept, reject, or
modify, in whole or in part, the findings and recommendations made by the Magistrate Judge.
Raddatz, 447 U.S. at 673-74.
Here, Plaintiff’s sole objection is that Bailey v. Rozum should not count as a strike because
it was not “dismissed in its entire[t]y” for failure to state a claim. Dkt. 53. Plaintiff is incorrect.
The Bailey v. Rozum record is clear: the district court judge adopted the magistrate judge’s lengthy
report recommending, inter alia, that the court dismiss the case for Plaintiff’s failure to state a
claim. No. 3:13-cv-78 (W.D. Pa. 2015). Indeed, in the related matter of Rambert v. Johnson, this
Court recently ruled that Bailey v. Rozum counts as a strike against Plaintiff. 2016 WL 6573855
(W.D. Pa. Nov. 7, 2016).
A prisoner-plaintiff who has accumulated three strikes may nevertheless be properly
granted in forma pauperis status if he demonstrates that he is in imminent danger of serious
physical injury. Abdul-Akbar v. McKelvie, 239 D.3d 307 (3d Cir. 2001)).

“[T]he court should

assess ‘imminent danger’ as of the time the prisoner’s complaint is filed[;] and [ ] a prisoner’s
allegation that he faced danger in the past is insufficient to allow him to proceed I.F.P.” Id. at 311
(internal citations omitted). Here, Plaintiff’s Complaint does not allege that he is in imminent
danger. See Dkt. 4. 1 Accordingly, pursuant to the PLRA, Plaintiff must be denied in forma
pauperis status. See, e.g., Abdul-Akbar, 239 F.3d at 315; Ball v. Famiglio, 726 F.3d 448, 468 (3d
Cir. 2013); Brown v. Lyons, 977 F. Supp. 2d 475, 484 (E.D. Pa. 2013). Having found that
Plaintiff’s case must be dismissed without prejudice to his right to reopen by paying the full $400

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Similarly, Plaintiff has not alleged that he is in imminent danger in either his relevant briefing or in his Objections.
See Pl’s. Opp. Def’s. Mot., Dkt. 22; Pl’s. Objs., Dkt. 53.

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filing fee, the Court need not address Defendant’s alternative motion to dismiss for improper
joinder. Dkt. 20.
Accordingly, the Court HEREBY ORDERS:
(1) The Court ADOPTS the Report and Recommendation [Dkt. 49];
(2) Defendants’ Motion to Revoke Plaintiff’s in forma pauperis status [Dkt. 20] is
GRANTED;
(3) The Court’s previous Order granting Plaintiff in forma pauperis status [Dkt. 3] is
VACATED;
(4) Plaintiff’s Motion to Proceed in forma pauperis [Dkt. 1] is DENIED;
(5) This case is DISMISSED WITHOUT PREJUDICE;
(6) This case is CLOSED.
IT IS SO ORDERED.
DATED this 11th day of April, 2017.

BARBARA J. ROTHSTEIN
UNITED STATES DISTRICT JUDGE

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