Petaway v. Porter et al
Filing
12
ORDER denying 3 Motion for Leave to Proceed in forma pauperis; adopting 6 Report and Recommendations; finding as moot 10 Motion for Decision on Pending the Magistrate Judge's Report and Recommendation. So Ordered by Chief Judge William E. Smith on 8/20/14. (Jackson, Ryan)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
Plaintiff,
)
v.
)
)
C/O PORTER, et al.,
)
)
Defendants.
)
___________________________________)
WILLIAM PETAWAY,
C.A. No. 13-794 S
ORDER
WILLIAM E. SMITH, Chief Judge.
On
January
21,
2014,
United
States
Magistrate
Judge
Patricia A. Sullivan issued a Report and Recommendation (ECF No.
6)
in
the
above-captioned
matter,
recommending
that
the
Plaintiff’s application to proceed in forma pauperis be denied,
and further recommending that most, but not all, of Plaintiff’s
pro se Complaint be dismissed without prejudice, and with leave
to
file
an
amended
1915(e)(2)(B)(ii).
Complaint
Plaintiff
William
objection to the R&R (ECF No. 8). 1
1
novo.
pursuant
to
Petaway
28
U.S.C.
has
filed
§
an
For the reasons set forth
This Court reviews Plaintiff’s objection to the R&R de
See Fed. R. Civ. P. 72(b)(3).
below, Plaintiff’s objection to the R&R is OVERRULED, and the
R&R is ADOPTED. 2
Magistrate Judge Sullivan determined that Petaway was not
entitled to proceed in forma pauperis because he is a “threestrike”
litigant
under
U.S.C. § 1915(g). 3
the
Prison
Litigation
Reform
Act,
28
Additionally, Magistrate Judge Sullivan ruled
that Petaway did not fall within the exception to the threestrikes rule, because he had not alleged he was in imminent
danger of serious physical injury.
Petaway argues first that he only has two “strikes” for the
purposes
of
28
U.S.C.
§
1915(g),
and
second
that
he
is
in
imminent danger of physical injury, and thus falls within the
statute’s exception.
Both arguments fail.
Petaway argues that a 2012 case dismissed by United States
District Judge John J. McConnell, Jr. should not count as a
2
Petaway has also filed a “Motion – Request for [the] court
to (decide) the magistrate ‘recommendation’” (ECF No. 10).
To
the extent that this motion is a supplemental memorandum of law,
the Court has reviewed it.
3
Pursuant to 28 U.S.C. § 1915(g),
permitted to proceed in forma pauperis:
a
prisoner
is
if the prisoner has, on 3 or more prior occasions,
while incarcerated or detained in any facility,
brought an action or appeal in a court of the United
States that was dismissed on the grounds that it is
frivolous, malicious, or fails to state a claim upon
which relief may be granted, unless the prisoner is
under imminent danger of serious physical injury.
2
not
strike because it was not dismissed at the “screening stage.” 4
But 28 U.S.C. § 1915(g) requires only that a prior action be
dismissed on the grounds that it was “frivolous, malicious, or
fails to state a claim upon which relief may be granted.”
U.S.C. § 1915(g).
28
For the purposes of the three-strikes rule,
an action is dismissed for failure to state a claim if “it is
dismissed pursuant to the standard set forth in Federal Rule of
Civil Procedure 12(b)(6).”
Ortiz v. Cox, 759 F. Supp. 2d 1258,
1261 (D. Nev. 2011).
Nothing in the statute suggests that this
dismissal
place
must
take
at
the
screening
stage.
Judge
McConnell clearly dismissed Petaway’s complaint for failure to
state a claim applying Rule 12(b)(6).
See Petaway v. DiNitto,
No. CA 11-047-M, 2012 WL 2222204, at *2 (D.R.I. June 14, 2012).
Thus, Magistrate Judge Sullivan properly counted this case as a
third strike.
Second, Petaway emphatically states that he is in imminent
danger
of
physical
harm.
Petaway
appears
to
believe
this
imminent harm is proven by “the practice of excessive force when
‘code blue’ [is] called.”
her
R&R,
however,
the
As Magistrate Judge Sullivan noted in
danger
described
by
Petaway
must
be
specific and establish more than that he fears a physical attack
4
In his objection, Petaway acknowledges that the two other
cases cited by Magistrate Judge Sullivan - Petaway v. Aul, C.A.
No. 11-665-M and Petaway v. Duarte, C.A. No. 11-497-ML – should
be counted as strikes.
3
could occur at some future date.
Burgess v. Conway, 631 F.
Supp. 2d 280, 283 (W.D.N.Y. 2009).
Petaway simply does not
articulate a danger greater than fear that a future attack may
occur.
Therefore, he does not fall within the exception to the
three-strikes
rule
and
is
ineligible
to
proceed
in
forma
pauperis.
After determining that Petaway was not eligible to proceed
in forma pauperis, Magistrate Judge Sullivan screened Petaway’s
Complaint
and
particular,
found
many
Magistrate
of
his
Judge
allegations
Sullivan
lacking. 5
recommended
In
that
all
claims based on allegations of indifference to serious medical
needs
and
all
claims
against
Defendants
Medical
Nurse
Dick,
Medical Program Director Vohr, Lt. Gallo, Lt. Sayles, Deputy
Leach, Warden Weeden, Chief Inspector Catlow, Inspector Wells,
Grievance
Coordinator
McCutcheon,
DOC
Director
Wall,
Lt.
Tierney, Lt. Macomber and R.I. State Police Det. Salisbury be
dismissed
pursuant
to
28
U.S.C.
§
1915(e)(2)(B)(ii)
and
28
U.S.C. § 1915A, with leave to file an amended complaint that
addresses
objects
consists
deficient
the
to
of
deficiencies
this
identified
recommendation.
repackaging
Complaint.
the
in
His
the
R&R.
Petaway
objection,
however,
information
Because
5
this
Court
contained
agrees
in
his
with
the
Magistrate Judge Sullivan recommended that assault
allegations lodged against CO Porter, CO Blain, CO Mason and CO
Santiago should survive the screening stage.
4
analysis and the recommendation set forth in the R&R, it hereby
adopts it pursuant to 28 U.S.C. § 636(b)(1).
For the foregoing reasons, Plaintiff’s objections to the
R&R are OVERRULED, and the R&R is ADOPTED.
IT IS SO ORDERED.
William E. Smith
Chief Judge
Date: August 20, 2014
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?