THOMAS v. LURUE et al
MEMORANDUM ORDER - it is hereby ORDERED that: Plaintiff's Motions for Leave to Proceed in forma pauperis (ECF Nos. 1 and 3 ) are DENIED pursuant to 28 U.S.C. § 1915(g); this action is DISMISSED, without prejudice to reopening once Plaint iff pays the full amount of statutory and administrative filing fees, totaling $400.00; and the Magistrate Judge's Report and Recommendation is adopted as the Opinion of the District Court. It is further ORDERED that Plaintiff's Motion to Appoint Counsel (ECF No. 8 ) is DENIED, and as more fully stated in said Memorandum Order. Signed by Judge Kim R. Gibson on 5/8/2017. (dlg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
C/O LURIE, et al.,
Civil Action No. 3: l 7-cv-0048
United States District Judge
Kim R. Gibson
This case was referred to United States Magistrate Judge Cynthia Reed Eddy for pretrial
proceedings in accordance with the Magistrates Act, 28 U.S.C. §§ 636(b)(l)(A) and (B), and
Local Rule of Civil Procedure 72.
On April 12, 2017, the Magistrate Judge issued a Report (ECF No. 2) recommending that
Plaintiff's Motion for Leave to Proceed in forma pauperis (ECF No. 1) 1 be denied, and that this
action be dismissed without prejudice to Plaintiff's paying the full amount of statutory and
administrative filing fees. Service of the Report and Recommendation was made, and Plaintiff
has filed Objections (ECF No. 6) and a Supplement to his Objections (ECF No. 7).
The Court finds that Plaintiff's objections do not undermine the recommendation of the
Magistrate Judge. The following three cases were counted as strikes:
Thomas v. Court of Common Pleas, No. 2: 92-cv-5290 (Eastern District of
Pennsylvania, Memorandum and Order of September 22, 1992, dismissing complaint as
frivolous pursuant to 28 U.S.C. § l 915(d));
After the Report and Recommendation was filed, Plaintiff filed a second Motion for
Leave to Proceed in forma pauperis at ECF No. 3.
Thomas v. McCoy, No. 1:10-cv-1639 (Middle District of Pennsylvania,
Memorandum and Order of September 22, 2011, dismissing complaint for failure to state a claim
pursuant to Federal Rule of Civil Procedure 12(b )(6)), summarily affirmed, No. 11-4309, 467 F.
App'x 94 (3d Cir. March 9, 2012); and
1: 11-cv-1089 (Middle District of Pennsylvania,
Memorandum and Order of May 25, 2012, dismissing amended complaint for failure to state a
claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)), summarily affirmed, No. 12-2612, 481 F.
App'x 33 (3d Cir. July 27, 2012).
Plaintiff makes two arguments that he does not have three strikes. First, he argues that
the magistrate judge incorrectly counted two summary appeal orders as strikes. However, the
summary appeal orders were not counted as strikes; rather only the District Court's orders were
counted. Therefore, Plaintiff's objection is without merit.
Next, Plaintiff argues that the Order in No. 2: 92-cv-5290 (E.D. Pa.) should not be
counted as a strike because he refiled the case and later settled the case. Plaintiff's objection is
without merit. While he may have filed a second case, which the Court notes was docketed at
No. 2:93-cv-0031 (E.D. Pa.), this second case has no effect on his first case, No. 2: 92-cv-5290,
which was dismissed as frivolous. It is also worth noting that in No. 2: 92-cv-5290, Plaintiff
named only two defendants: Court of Common Pleas Philadelphia and City of Philadelphia.
That case was dismissed as frivolous and closed on September 22, 1992.
Plaintiff filed No. 2:93-cv-0031, in which he named three defendants:
In January, 1993,
officers Herberto Aponte and Detective Devlin and the Honorable Frederica A. MassiahJackson. Case No. 2: 93-cv-0031 case has not been counted as a strike.
Furthermore, as explained in the Report, Thomas is not entitled to proceed in forma
pauperis under the "imminent danger" exception to the three strikes rule. The assault which is
the subject matter of the complaint occurred on June 30, 2015, at SCI-Houtzdale. At the time
this lawsuit was filed, Plaintiff was housed at SCI-Benner, where he continues to be housed.
After a de nova review of the pleadings and documents in the case, together with the
Report and Recommendation and the Objections thereto, it is hereby ORDERED that:
Plaintiff's Motions for Leave to Proceed in forma pauperis (ECF Nos. 1 and 3) are DENIED
pursuant to 28 U.S.C. § 191 S(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 is adopted as the Opinion of the District
It is further ORDERED that Plaintiff's Motion to Appoint Counsel (ECF No. 8) is
IT IS SO ORDERED this
8+h day of May, 2017.
Kim R. Gibson
United States Magistrate Judge
SCI Benner Township
301 Institution Drive
Bellefonte, PA 16823
(via U.S. First Class Mail)
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