Evans v. Faulkner et al

Filing 10

MEMORANDUM: Plaintiff is DENIED leave to proceed in forma pauperis. (D.I. 1 ). Plaintiff is given thirty (30) days from the date of this Order to pay the $402.00 filing fee. If Plaintiff does not pay the filing fee within that time, the Complaint shall be dismissed pursuant to 28 U.S.C. § 1915(g). Signed by Judge Richard G. Andrews on 5/6/2022. (nms)

Case 1:22-cv-00301-RGA Document 10 Filed 05/06/22 Page 1 of 3 PageID #: 131

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
AUGUSTUS HEBREW EVANS, JR.,
Plaintiff,
v.
LT. JOHN FAULKNER, et al.,
Defendants.

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: Civ. Act. No. 22-301-RGA
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MEMORANDUM
1.

Introduction. Plaintiff Augustus Hebrew Evans, Jr. (“Plaintiff”), SBI No.

191247, an inmate at the James T. Vaughn Correctional Center, Smyrna, Delaware,
filed this complaint pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional
rights and raising supplemental state claims. He proceeds pro se and moves for leave
to proceed in forma pauperis. 1 (D.I. 1). The Court once again considers Plaintiff’s
motion for leave to proceed in forma pauperis.
2.

Legal Standards. The Prison Litigation Reform Act (“PLRA”) provides

that a prisoner cannot bring a new civil action or appeal a judgment in a civil action in
forma pauperis if he has three or more times in the past, while incarcerated, brought a
civil action or appeal in federal court that was dismissed as frivolous, malicious, or for
failure to state a claim upon which relief may be granted, unless the prisoner is under
imminent danger of serious physical injury. See Ball v. Famiglio, 726 F.3d 448, 455-56
(3d Cir. 2014) (citing 28 U.S.C. § 1915(g) and discussing what qualifies as a strike

This Court denied the motion for leave to proceed in forma pauperis and ordered
Plaintiff to provide a sworn statement regarding settlement monies he received in 2020.
(D.I. 8). Plaintiff’s filing indicates that those monies are “deleted.” (D.I. 9). I am
satisfied he is properly claiming IFP status.
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under the PLRA). A case dismissed as frivolous prior to the enactment of the PLRA
(i.e., April 26, 1996) is counted when applying the “three strikes rule.” Keener v.
Pennsylvania Bd. of Probation & Parole, 128 F.3d 143 (3d Cir. 1997). An exception is
made to the “three strikes rule”, when the prisoner is in imminent danger of serious
physical injury. A prisoner who is not proceeding in forma pauperis may file a new civil
action or appeal even if that prisoner has three or more dismissals described in 28
U.S.C. § 1915(g).
3.

Background. Plaintiff, while incarcerated, has filed twenty-six cases,

about twenty-four of which I would call civil actions, and more than three of the civil
actions have been dismissed as frivolous or for failure to state a claim upon which relief
may be granted. See, e.g., Evans v. Graves, Civ. Act. No. 17-54-RGA, D.I. 15 (D. Del.
June 12, 2017) (dismissed as frivolous); Evans v. Seaford Police Dep’t, Civ. No. 11195-LPS (D. Del. Apr. 3, 2012) (dismissed as frivolous); Evans v. Wright, Civ. No. 07656-JJF, (D. Del. Feb. 21, 2008) (dismissed for failure to state a claim upon which relief
may be granted); Evans v. McMillan, Civ. No. 07-591-JJF (D. Del. Dec. 10, 2007)
(dismissed as frivolous and for failure to state a claim upon which relief may be
granted); and Evans v. Sussex Correctional Inst., Civ. No. 92-619-LOT (D. Del. June
13, 1993). Therefore, Plaintiff may not file another civil action in forma pauperis while
incarcerated unless he is in “imminent danger of serious physical injury” at the time of
the filing of his complaint. 28 U.S.C. § 1915(g); Abdul-Akbar v. McKelvie, 239 F.3d
307, 311 (3d Cir. 2001). Plaintiff concedes that the three strikes rule applies to him.
(D.I. 5 at 1).

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4.

In addition to the Complaint, Plaintiff filed a declaration regarding imminent

danger. (D.I. 5). After reviewing the Complaint and declaration, the Court concludes
that Plaintiff has not adequately alleged that at time of the filing of the complaint he was
under imminent danger of serious physical injury. See Williams v. Forte, 135 F. App’x
520 (3d Cir. 2005) (allegations of lack of medical treatment satisfy threshold criterion of
the imminent danger exception); Abdul-Akbar v. McKelvie, 239 F.3d 307, 311 (3d Cir.
2001) (en banc). Plaintiff alleges that when he was moved from a single cell to a cell in
medium security, he advised prison personnel that he must be housed alone. Instead,
a cellmate was placed in his cell, and the cellie attacked and injured Plaintiff. Plaintiff
alleges that the cellmate was placed in his cell in retaliation by Defendants. Plaintiff
received mental health treatment on numerous occasions during the relevant timeframe. Plaintiff was ultimately moved to maximum security and is housed alone.
Plaintiff does not allege “imminent harm”. Rather, he complains of his fear of future
retaliation. This does not meet the threshold criterion of the imminent danger
exception. Based upon the foregoing, Plaintiff is not excused from the restrictions
under § 1915(g), and he may not proceed in forma pauperis.
THEREFORE, IT IS HEREBY ORDERED this 6th day of May that:
1.

Plaintiff is DENIED leave to proceed in forma pauperis. (D.I. 1).

2.

Plaintiff is given thirty (30) days from the date of this Order to pay the

$402.00 filing fee. If Plaintiff does not pay the filing fee within that time, the Complaint
shall be dismissed pursuant to 28 U.S.C. § 1915(g).

/s/ Richard G. Andrews____________
UNITED STATES DISTRICT JUDGE
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