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BROWN v. WETZEL, 2:14-cv-1204. (2015)

Court: District Court, W.D. Pennsylvania Number: infdco20151117c83 Visitors: 23
Filed: Nov. 16, 2015
Latest Update: Nov. 16, 2015
Summary: MEMORANDUM ORDER MAURICE B. COHILL, Jr. , Senior District Judge . This case originally was referred to United States Magistrate Judge Susan Paradise Baxter 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. On November 18, 2014, Magistrate Judge Baxter recused and the case was reassigned to United States Magistrate Judge Cynthia Reed Eddy. On August 21, 2015, Magistrate Judge Eddy issued a Report and Reco
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MEMORANDUM ORDER

This case originally was referred to United States Magistrate Judge Susan Paradise Baxter 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. On November 18, 2014, Magistrate Judge Baxter recused and the case was reassigned to United States Magistrate Judge Cynthia Reed Eddy.

On August 21, 2015, Magistrate Judge Eddy issued a Report and Recommendation [ECF No. 82] recommending that Plaintiff's in forma pauperis status be revoked and this action be dismissed without prejudice, with the right to Plaintiff to reopen by paying the full statutory and administrative filing fees. The parties were advised that written objections to the Report and Recommendation were due by September 10, 2015. Plaintiff requested an enlargement of time to file his objections, which was granted, and Plaintiff was given an extension until September 28, 2015, to file his objections.

On October 20, 2015, the Court received "Informal: Plaintiff's Objections to Magistrate Judge Eddy (CRE) Report and Recommendation (R&R) dated August 21st, 2015." [ECF No. 86.] The objections are dated September 23, 2015, but postmarked October 16, 2015. The Court will give Plaintiff the benefit of the prisoner mailbox rule as the objections appear to be timely signed.

The Court finds that Plaintiff's Objections do not undermine the recommendation of the Magistrate Judge. Plaintiff's bare allegations that "the judge (CRE) has committed `racial bias'" and that there is a "conflict-of-interest between the magistrates" are without merit and require no further discussion.

For the same reasons stated in the Report and Recommendation, which is adopted as the Opinion of the District Court, Plaintiff's objection that his complaint satisfies the "imminent danger exception" is OVERRULED. Plaintiff is no stranger to the IFP standards, generally, and the "three strike" standards, specifically. As the Magistrate Judge has already explained, the only allegation of imminent serious danger of bodily injury is stated in a conclusory and unsupported manner. Given Plaintiff's history of abusive litigation and the generalized nature of his claim of imminent danger in this lawsuit, the Court is not required to accept this allegation as true. Brown v. City of Philadelphia, 331 F. App'x 898, 900 (3d Cir.), cert. denied, 558 U.S. 999 (2009).

Notably, the instant ruling does not prohibit Plaintiff from pursuing his instant claims in federal court, it only denies him the privilege of proceeding without the payment of filing fees.

The Court has reviewed de novo the pleadings and documents in the case, together with the Report and Recommendation, and the Objections thereto. Having done so, the following Order is entered:

AND NOW, this 16th day of November, 2015, it is hereby ORDERED, ADJUDGED AND DECREED as follows:

1. The Magistrate Judge's Report and Recommendation [ECF No. 82], dated August 21, 2015, is adopted as the Opinion of the Court. Plaintiff's in forma pauperis status is hereby REVOKED.

2. The Clerk of Court shall notify the Inmate Account Officer at SCI-Coal Township to stop all further deductions from Plaintiff's inmate account for this civil action.

3. This case is DISMISSED WITHOUT PREJUDICE to reopening once Plaintiff pays in full the applicable filing fees.

4. Plaintiff's Motion to Appoint Counsel [ECF No. 85] is DENIED AS MOOT.

Source:  Leagle

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