UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

IN RE ARTHUR D‟AMARIO, ) 

) 

) Civil No. 1:07-CV-00324-JAW

)

ORDER AFFIRMING THE

RECOMMENDED DECISION OF THE MAGISTRATE JUDGE

On December 3, 2007, the United States Magistrate Judge filed her Recommended 

Decision regarding the Petitioner‟s Motion to proceed in forma pauperis. Arthur D‟Amario, the 

petitioner, filed an objection to the Recommended Decision on April 4, 2008. The Court has

reviewed and considered the Magistrate Judge‟s Recommended Decision, together with the 

entire record; it has made a de novo determination of all matters adjudicated by the Magistrate 

Judge‟s Recommended Decision, and concurs with the recommendations of the United States 

Magistrate Judge for the reasons set forth in her Recommended Decision and in this opinion, and 

determines that no further proceeding is necessary. 

I. DISCUSSION

In the Recommended Decision, the Magistrate Judge notes that the United States District 

Court in the District of New Jersey found that its dismissal of Mr. D‟Amario‟s writ of mandamus 

action for failure to state a claim appeared “to be at least Petitioner‟s third „strike‟ for purposes 

of 28 U.S.C. § 1915(g).” Recommended Decision at 3 (Docket # 12) (quoting D’Amario v. Clerk 

U.S. Dist. Ct., Civ. No. 07-4566 (RBK), 2007 WL 2990713, at *3 (D.N.J. Oct. 5, 2007)). In that 

case, the New Jersey court counted its dismissal as one strike, D'Amario v. U.S. Bureau of Prisons, 

Civ. No. 01-0561 (JEI) (D.N.J.) as a second strike, and D’Amario v. Olnes, Civ. No. 01-0742 (ADM) 

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(D. Minn.) as the third strike under § 1915(g).1 Mr. D‟Amario, in his objection to the Magistrate 

Judge‟s Recommended Decision, argues against the application of the three strikes rule against 

him. He first claims that he “lost the „Olnes‟ case because he was in transit and missed court 

procedural orders.” Objection to Recommended Decision at 1. (Docket # 20). He next argues that 

he lost “the „USBOP‟ case because Judge Irenas is incompetent and unable to comprehend basic 

facts, like the fact that once Central Office denies an administrative appeal, the matter is ripe for 

judicial review.” Id. Finally, Mr. D‟Amario argues that the “D/NJ case v. the Clerk is still pending 

via a Rule 59(e) motion. If that motion is denied, he‟ll appeal.” Id. 

Mr. D‟Amario‟s arguments relating to travel logistics and his personal opinions concerning

judicial competency do not overcome the statutory mandate of § 1915(g). His third argument 

regarding D’Amario v. Clerk raises the question as to when a dismissal is considered final and 

counted as a strike under § 1915(g). Mr. D‟Amario‟s Rule 59(e) motion to alter or amend 

judgment and to disqualify all District of New Jersey Judges was denied on March 19, 2008. 

Opinion and Order at 6 (Docket # 10). He has not filed an appeal. Section 1915(g) “applies 

 

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In D'Amario v. U.S. Bureau of Prisons, the court ordered Mr. D‟Amario‟s complaint “dismissed in its 

entirety for failure to state a claim upon which relief can be granted . . . .” Order (Docket # 2). Mr. D‟Amario 

appealed the decision, (Docket # 3), and the appeal was dismissed for failure to timely prosecute. (Docket # 12).

 In D’Amario v. Olnes, the Recommended Decision stated that “[f]or purposes of 28 U.S.C. § 1915(g), this 

action should be dismissed „on the grounds that it is frivolous, malicious, or fails to state a claim on which relief 

may be granted.‟” Recommended Decision at 11 (Docket # 14). The Recommended Decision was “adopted in full” 

by the court over Mr. D‟Amario‟s objections. Mem. Op. and Order at 1 (Docket # 20). Mr. D‟Amario filed a notice 

of appeal (Docket # 22), and a motion to proceed in forma pauperis (Docket # 24). This motion was denied, Order

(Docket # 26), and the appeal was dismissed for failure to prosecute. (Docket # 27). Mr. D‟Amario then filed a 

Motion from Judgment, (Docket # 29), which was denied. Order (Docket # 31). Both dismissals are final 

dismissals.

Reviewing Mr. D‟Amario‟s extensive list of dockets on PACER – 96 civil cases and 234 total cases – it 

appears other cases would qualify as a strike under § 1915. For example, in D’Amario v. Salisbury, et al., 91-cv313-T-JH (D.R.I.), Mr. D‟Amario‟s six count complaint under § 1983 was dismissed “for failure to state factual 

issues.” Report and Recommended Decision (Docket # 16). This Recommended Decision was accepted by the 

court. Order (Docket # 24). Mr. D‟Amario‟s appeal was dismissed for failure to pay docketing fees as directed. 

(Docket # 34).

Mr. D‟Amario‟s frivolous filings have been noted by other courts as well. In D’Amario v. United States of 

America, 5-cv-216-P-H, Judge Hornby placed Mr. D‟Amario “on NOTICE that filing restrictions „may be in the 

offing.‟ This represents the „cautionary order‟ of which Cok speaks. Groundless and inappropriate filings will not 

be tolerated.” Order on Pet.’s Mot. for Relief from J. at 2-3 (Docket # 17) (quoting Cok v. Family Court of Rhode 

Island, 985 F.2d 32, 35 (1st Cir. 1993)).

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only to final dismissals. Dismissals do not count as strikes until an appeal has been either 

waived or resolved.” Thompson v. DEA, 492 F.3d 428, 440 (D.C. Cir. 2007). As no appeal has 

been filed, and the time for such an appeal has passed, the dismissal of D’Amario v. Clerk is 

considered final and counts as a third strike. 

1. It is therefore ORDERED that the Recommended Decision of the Magistrate Judge is 

hereby AFFIRMED.

2. It is further ORDERED that the Petitioner‟s Motion to proceed in forma pauperis 

(Docket # 2) is DENIED.

SO ORDERED.

/s/ John A. Woodcock, Jr.

JOHN A. WOODCOCK, JR.

UNITED STATES DISTRICT JUDGE

SITTING BY DESIGNATION

Dated this 13th day of June, 2008

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