PETTAWAY v. WOLF et al, No. 1:2018cv00306 - Document 2 (W.D. Pa. 2018)

Court Description: MEMORANDUM OPINION that the pending motion will be denied and the case closed pending payment of the filing fee. An appropriate Order follows. Signed by Judge Susan Paradise Baxter on 10/25/18. (lrw)

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA WAYNE PETTAWAY, Plaintiff, v. GOVERNOR TOM WOLF, et al, Defendants. ) ) ) ) ) ) ) Civil Action No. 18-306E District Judge Susan Paradise Baxter MEMORANDUM OPINION District Judge Susan Paradise Baxter Plaintiff’s motion for leave to proceed in forma pauperis [ECF No. 1] will be denied in accordance with 28 U.S.C. § 1915(g) and this case shall be closed until such time as Plaintiff pays the full filing fee of $400.001. Plaintiff Wayne Pettaway, currently incarcerated within the State Correctional System of Pennsylvania, presented this civil rights complaint against the following Defendants: Governor Tom Wolf; Secretary of Corrections John E. Wetzel; Sgt. Mackintosh; Hearing Examiner Szelewski; Captain Capola; Captain Thomas; Lt. Harmon; Paul A. Ennis; Bryan Flinchbaugh; CCPM Valarie Kusiak; Jeffrey Ditty; Superintentent Michael Clark; Eric Williams; Security Captain Jones; Kevin Lantz; and Naomi Wyatt. There is a filing fee of $350.00 and an administrative fee of $50.00. However, the $50.00 administrative fee does not apply to persons granted in forma pauperis status under 28 U.S.C. § 1915. If in forma pauperis status is denied, the plaintiff will be required to pay $400. Thus, Plaintiff will be required to pay the full $400.00 if he wishes to proceed with this matter. 1 1 Plaintiff’s unsigned complaint, although typed, is difficult to follow. Plaintiff complains generally that retaliation against prisoners is common and Plaintiff focuses on the Pennsylvania law that establishes “public safety radio.” Plaintiff also complains that many of the Department of Corrections Defendants do not possess the required “license.” Finally, Plaintiff complains about the outcome of a misconduct hearing. As relief, Plaintiff seeks release from incarceration, as well as monetary damages. Plaintiff seeks leave to prosecute in forma pauperis pursuant to 28 U.S.C. § 1915. ECF No. 1. Section 804(g) of Pub.L. No. 104-134, enacted April 26, 1996, amended 28 U.S.C. § 1915 to provide: [i]n no events shall a prisoner bring a civil action ... under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in the 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. 28 U.S.C. §1915(g). Plaintiff has been a prolific filer in this federal court. At least three of Plaintiff’s prior lawsuits have been dismissed as legally frivolous or for failure to state a claim upon which relief may be granted: Pettaway v. SCI Albion, C.A. No. 11-158Erie; Pettaway v. SCI Albion, C.A. No. 12-1396 (Third Circuit); Pettaway v. State of Pennsylvania, C.A. No. 13-1551Pittsburgh; Pettaway v. District Attorney Zappala, C.A. No. 15-1431Pittsburgh; Pettaway v. Overton, C.A. No. 13-213Erie; and Pettaway v. Overton, C.A. No. 15-2156 (Third Circuit). An indigent inmate may overcome the “Three Strikes Rule” if he can show that he is under “imminent danger of serious physical injury.” Abdul-Akbar v. McKelvie, 239 F.3d 307 (3d Cir. 2001) (interpreting imminent danger). See also Brooks-Bey v. Schmerfelt, 2011 WL 2 1398472, at *3 (M.D. Pa. March 21, 2011). There are no factual allegations in Plaintiff’s complaint that indicate that Plaintiff is in any imminent danger.2 Because of these prior dismissals, and because Plaintiff has not alleged that he is in imminent danger of serious physical injury, Plaintiff’s motion for leave to proceed in forma pauperis [ECF No. 1] will be denied in accordance with 28 U.S.C. § 1915(g) and this case shall be closed until such time as Plaintiff pays the full filing fee of $400.00. In accordance with Brown v. Sage, 903 F.3d 300, 307 (3d Cir. Sept.7, 2018), Plaintiff’s complaint will remain lodged. An appropriate Order follows. It is a plaintiff’s burden to prove entitlement to in forma pauperis status. Robert v. Walls, 2011 WL 1599652, at *1 (W.D. Pa. March 14, 2011) citing White v. Gregory, 87 F.3d 429, 430 (10th Cir. 1996). 2 3

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