Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Escalera v. Graham

May 27, 2008

WILLIAM ESCALERA, PLAINTIFF,
v.
H. GRAHAM, SUPERINTENDENT; ET AL., DEFENDANTS.



The opinion of the court was delivered by: George H. Lowe, United States Magistrate Judge

ORDER and REPORT-RECOMMENDATION

This pro se prisoner civil rights action, commenced pursuant to 42 U.S.C. § 1983, has been referred to me by the Honorable Gary L. Sharpe, United States District Judge, to hear and determine all pretrial matters (of a non-dispositive nature) and issue report-recommendations on all dispositive matters before the Court, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Currently before the Court is Plaintiff's motion to proceed in forma pauperis. (Dkt. No. 2.) For the reasons discussed below, I deny Plaintiff's motion pursuant to 28 U.S.C. § 1915(g), and I recommend that the Court sua sponte dismiss his Complaint (pursuant to 28 U.S.C. §§ 1915[e][2][B][ii], 1915A) if he has not, within thirty (30) days of the date of this Order and Report-Recommendation, (1) paid the Court's filing fee of three hundred fifty dollars ($350), and (2) filed an Amended Complaint that complies with Fed. R. Civ. P. 8(a)(2), 10(b), and 12(b)(6).

I. SUMMARY OF PLAINTIFF'S COMPLAINT

Generally, in his Complaint, William Escalera ("Plaintiff") alleges that eight employees of Auburn Correctional Facility ("Auburn C.F."), and an unidentified number of members of the "Time Allowance Committee" at Auburn C.F. (collectively "Defendants"), violated his rights under the First, Eighth and Fourteenth Amendment in the following five ways:

(1) They were deliberately indifferent to his serious medical needs in various unspecified ways between October 5, 2004 (when he was admitted to Auburn C.F.) and April 12, 2008 (the time he dated his Complaint in this action), both before and after approximately April of 2006, when he underwent surgery to remove a bunion on the big toe of his right foot;

(2) They were deliberately indifferent to his serious medical needs when, following his making of "sick call" requests on April 4, 2008, and April 7, 2008 (presumably regarding his "seizures disorder" and "history of eczema"), he was seen by a nurse who denied his request for "medications, [a] medical shower, and appoints. to see [a] doctor";

(3) They wrongfully convicted him of disciplinary charges on February 25, 2008;

(4) They wrongfully terminated him from the Auburn C.F. Alcohol Substance Abuse Treatment ("ASAT") Program, because of the thirty (30) day sentence of keeplock confinement that was imposed on him following his disciplinary conviction on February 25, 2008, and they wrongfully denied his request to be reinstated in that Program; and

(5) They wrongfully denied him due process of law, an impartial hearing officer, and equal protection of the law during a hearing conducted on April 9, 2008, regarding a grievance that Plaintiff had filed against a correctional officer on February 10, 2008, alleging assault. (See generally Dkt. No. 1 [Plf.'s Compl.].)

II. DISCUSSION

A. Three Strikes Rule

Under the so-called "Three Strikes Rule" set forth in the federal statute governing in forma pauperis proceedings,

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding 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 a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.