HOYE v. KELLY

Filing 13

MEMORANDUM ORDER. Plaintiff's Motion for Leave to Proceed in forma pauperis 4 is DENIED pursuant to 28 U.S.C. § 1915(g); this action is DISMISSED, without prejudice to reopening once Plaintiff pays the full amount of statutory and administrative filing fees, totaling $400.00; and the Magistrate Judge's Report and Recommendation 5 is adopted as the Opinion of the District Court. Signed by Judge Nora Barry Fischer on 2/8/2019. (bsc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
NATHAN R. HOYE,
Plaintiff,
vs.
OFFICER KELLY, Allegheny County
Officer, and COMMONWEALTH OF
ALLEGHENY,
Defendants.

NATHAN R. HOYE,
Plaintiff,
vs.
COMMONWEALTH OF ALLEGHENY,
County Criminal Division,
Defendant.

NATHAN HOYE,
Plaintiff,
vs.
COMMONWEALTH OF ALLEGHENY
COUNTY,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

)
)
)
)
)
)
)
)
)
)

)
)
)
)
)
)
)
)
)
)
)

1

2:18-CV-00467
Judge Nora Barry Fischer

2:18-CV-00933
Judge Nora Barry Fischer

2:18-CV-1256
Judge Nora Barry Fischer

MEMORANDUM ORDER
The above three cases were referred to United States Magistrate Judge Cynthia Reed
Eddy for pretrial proceedings in accordance with the Magistrates Act, 28 U.S.C. §§ 636(b)(1)(A)
and (B), and Local Rule of Civil Procedure 72. In all three cases, Plaintiff, Nathan Hoye, alleges
that on January 25, 2018, Officer Kelly filed false charges against him for assault by a prisoner
against an officer in violation of his Eighth Amendment rights against cruel and unusual
punishment.
On October 22, 2018, the Magistrate Judge issued a Report in each case recommending
that the Motion for Leave to Proceed in forma pauperis be denied as Plaintiff had not satisfied
the imminent danger exception to the three strikes rule of 28 U.S.C. § 1915(g). Plaintiff was
served with the Report and Recommendations at his listed address of record and advised that
written objections were due by November 8, 2018. On November 7, 2018, the Report and
Recommendations were returned unopened to the Court with the following notation on the
envelopes: “RTS. Temp. Release.” Upon inquiry, the Court was informed that Plaintiff had
been transferred to Torrance State Hospital and was unable to file timely objections. On
November 8, 2018, the Court sua sponte filed an Order granting Plaintiff an extension until
December 10, 2018, to file written objections to the Report and Recommendations.
On December 4, 2018, the Court was informed that Plaintiff remained in custody at
Torrance State Hospital. The cases were then statistically closed until such time as Plaintiff
notified the Court of his return to Allegheny County Jail. On January 3, 2019, Plaintiff notified
the Court that he had been returned to Allegheny County Jail. The cases were reopened and
Plaintiff was granted an extension until January 24, 2019, to file his written objections. To date,

2

Plaintiff has not filed any objections in these cases nor has he sought an extension of time in
which to do so.
After a review of the pleadings and documents in each of these cases, together with the
Report and Recommendations, the Court finds that the Magistrate Judge made a sound
recommendation. Hoye alleges that Officer Kelly falsely charged him with assault by a prisoner
on January 25, 2018. Hoye’s criminal case is currently scheduled for a non-trial jury before
Judge Alexander P. Bicket on February 12, 2019. As the United States Court of Appeals for the
Third Circuit has instructed, a plaintiff must allege facts showing that he was in imminent danger
at the time the complaint was filed. Abdul-Akbar v. McKelvie, 239 F.3d 307 (3d Cir.), cert.
denied, 533 U.S. 953 (2001). The following Order is entered:
The Motion for Leave to Proceed in forma pauperis filed in each of the above cases is
DENIED, and these actions are dismissed without prejudice to Plaintiff’s right to reopen them
by paying in each case the full statutory and administrative filing fees, totaling $400.00. The
Report and Recommendation of the Magistrate Judge filed in each case, dated October 22, 2018,
hereby is ADOPTED as the Opinion of the District Court.
IT IS SO ORDERED this 8th day of February, 2019.

/s Nora Barry Fischer
Nora Barry Fischer
United States District Judge

cc:

NATHAN R. HOYE
167618
Allegheny County Jail
950 2nd Avenue
Pittsburgh, PA 15219-3100

3