Nieves v. Geroulo

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

LUIS NIEVES, :

Plaintiff, : CIVIL ACTION NO. 4:22-16

v. : (JUDGE MANNION)

VITO T. GEROULO, et al., :

Defendants. :

ORDER

Pending before the court are plaintiff’s motion to proceed in forma

pauperis (Doc. 7) and motion to appoint counsel (Doc. 19). Also pending

before the court is Magistrate Judge Arbuckle’s report and recommendation,

(Doc. 16), pertaining to plaintiff’s motion to proceed in forma pauperis, (Doc.

7). Plaintiff filed an objection to the report and recommendation of Judge

Arbuckle. (Doc. 18). Plaintiff’s motions are now ripe for disposition.

I. STANDARD OF REVIEW1

When objections are timely filed to the report and recommendation of

a magistrate judge, the district court must review de novo those portions of

the report to which objections are made. 28 U.S.C. '636(b)(1); Brown v.

1 The court will not repeat the factual or procedural background as

Judge Arbuckle has already provided a sufficient background in his report

and recommendation.

Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo,

the extent of review is committed to the sound discretion of the district judge,

and the court may rely on the recommendations of the magistrate judge to

the extent it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.

Pa. 2000) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).

For those sections of the report and recommendation to which no

objection is made, the court should, as a matter of good practice, Asatisfy

itself that there is no clear error on the face of the record in order to accept

the recommendation.@ Fed. R. Civ. P. 72(b), advisory committee notes; see

also Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465, 469

(M.D. Pa. 2010) (citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir.

1987) (explaining judges should give some review to every report and

recommendation)). Nevertheless, whether timely objections are made or not,

the district court may accept, not accept, or modify, in whole or in part, the

findings or recommendations made by the magistrate judge. 28 U.S.C.

'636(b)(1); Local Rule 72.31.

II. DISCUSSION

Judge Arbuckle has properly established the pertinent law for the

plaintiff’s current motion. The Prison Litigation Reform Act (hereinafter

“PLRA”) seeks to stem frivolous lawsuits from prisoners. Here, Luis Nieves

(hereinafter “Nieves”) has filed three previous lawsuits that qualify as strikes

under the PLRA: Nieves v. Pennsylvania, No. 3:18-CV-1253, 2020 WL

265556, at *1 (M.D. Pa. Jan. 16, 2020) (dismissing case for “failure to state

a claim upon which relief may be granted.”); Luis Nieves v. Warden et al.,

No. 3:19-CV-0507 (M.D. Pa. Oct. 28, 2019) (dismissing case for “failure to

state a claim upon which relief may be granted.”); Luis Nieves v. Geroulo et

al., No. 4:20-CV-0777 (M.D. Pa. Mar. 5, 2021) (dismissing case for “failure

to state a claim upon which relief may be granted.”).

There is an exception to the PLRA’s three strike rule for a plaintiff in

imminent danger of serious physical injury. However, Judge Arbuckle

explained that the plaintiff identifies no imminent danger. Nieves alleges a

conspiracy between judges, police, district attorneys, and defense attorneys.

None of Nieves’ allegations present an imminent danger of serious physical

injury. Therefore, the court agrees with Judge Arbuckle that Nieves fails to

allege he is in imminent danger of serious physical injury as required by the

PLRA.

Nieves objects to Judge Arbuckle’s report and recommendation on the

grounds that a conspiracy exists amongst state police officers, judges,

prosecutors, defense attorneys, and prison officials. While plaintiff presents

a varying array of events throughout his interactions with the state court

system, none of his claims satisfy the imminent danger of serious physical

injury exception to the PLRA. The imminent danger exception is designed

“for genuine emergencies,” when “a threat ... is real and proximate.” Lewis v.

Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). Plaintiff identifies no real and

proximate threat, yet alone an imminent danger of serious physical injury.

Upon review, the court agrees with the sound reasoning which led

Judge Arbuckle to his conclusions. As such, the court will adopt the report

and recommendation as the decision of the court.

In light of the foregoing, IT IS HEREBY ORDERED THAT:

(1) Plaintiff’s motion for leave to proceed in forma pauperis, (Doc. 7), is

DENIED.

(2) Plaintiff’s case is DISMISSED pursuant to 28 U.S.C. §1915(g)

because plaintiff has accrued three “strikes” and has not

demonstrated that he is in imminent danger of serious physical injury.

(3) All pending motions, (Doc. 19), are dismissed as MOOT.

(4) The clerk of the court is directed to CLOSE THE CASE.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: November 14, 2022

22-16-01