PEW v. WETZEL et al

Filing 5

MEMORANDUM ORDER denying 1 Motion for Leave to Proceed in forma pauperis an adopting 4 Report and Recommendation of Magistrate Judge Lenihan as the opinion of the Court. Case is dismissed without prejudice as to plaintiff's right to reopen by paying the full filing fee. The Clerk shall mark this case CLOSED. Signed by Judge David S. Cercone on 3/3/17. (njt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ALFONSO PERCY PEW,

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Plaintiff,

v.

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JOHN E. WETZEL, Secretary of
Corrections, SHIRLEY MOORE
SMEAL, Executive Deputy Secretary,
STEVEN R. GLUNT, Regional
Deputy Secretary, TRACEY SMITH,
Director, Religious Accommodation
Committee, and MARCIA NOLES,
Food Services, Bureau of Health Care
Services,

3:17cv9
Electronic Filing
Judge David Stewart Cercone
Magistrate Judge Lisa Pupo Lenihan

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Defendants.
MEMORANDUM ORDER

Plaintiff Alfonso Percy Pew ("Plaintiff') initiated this prisoner civil rights action on
January 20, 2017, by filing a Motion for Leave to Proceed informa pauperis, an affidavit
alleging imminent danger, and a proposed civil rights complaint. (ECF No. 1.) That same day,
this case was referred to United States Magistrate Judge Lisa Pupo Lenihan for all pretrial
matters in accordance with the Magistrate Judge's Act, 28 U.S.C. § 636(b)(l), and Rules 72.C
and 72.D of the Local Rules of Court.
On February 8, 2017, the Court held an evidentiary hearing on Plaintiffs allegations of
imminent danger. (ECF No. 3.) Following testimony from Plaintiff, and other Department of
Corrections personnel, the Magistrate Judge ruled that Plaintiff was not in imminent danger of
serious physical injury or harm. Therefore, in accordance with her Report and Recommendation
that she filed on February 8, 2017, (ECF No. 4), the Magistrate Judge recommended that
Plaintiffs Motion for Leave to Proceed in forma pauper is be denied because he has three

"strikes" that prohibit him from proceeding in forma pauperis without a showing of imminent
danger. See 28 U.S.C. § 1915(g). Plaintiff was served with the Report and Recommendation
and advised that he had until February 27, 2017 to file objections. As of today, no objections
have been filed. Therefore, after reviewing the record de novo, the Court is in agreement with
the ultimate recommendation of the Magistrate Judge. Accordingly,

IT IS HEREBY ORDERED that the Report and Recommendation dated February 8,
2017, (ECF No. 4), is adopted as the Opinion of the Court.

IT IS FURTHER ORDERED that Plaintiff's Motion for Leave to Proceed informa

pauperis, (ECF No. 1), is denied in accordance with 28 U.S.C. § 1915(g).
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 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.

Dated:

cc:

~~ 31 .le/1

David Stewart Cercone
United States District Judge

Honorable Lisa Pupo Lenihan,
United States Magistrate Judge
Alfonso Percy Pew
BT-7263
SCI Houtzdale
209 Institution Drive
P.O. Box 1000
Houtzdale, PA 16698
(Via First Class Mail)
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