BROWN v. PRISON HEALTH SERVICES, INC. et al

Filing 26

MEMORANDUM. SIGNED BY MAGISTRATE JUDGE THOMAS J. RUETER ON 2/21/2013. 2/21/2013 ENTERED AND COPIES MAILED TO PRO SE AND E-MAILED.(amas)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CIVIL ACTION

ALTON D. BROWN

v.
NO. 12-3578

PRISON HEALTH SERVICES, INC.,
et al.

MEMORANDUM ORDER

AND NOW, this 21st day of February, 2013, upon consideration of plaintiffs
unopposed Request for Additional Time to Serve Corrections Defendants, and for Order
Requiring Marshal to Serve Same Defendants (Doc. 17) (the "Motion"), it is hereby
ORDERED

that the Motion is GRANTED.

1

This case was filed by plaintiff, a prisoner presently incarcerated at the State
Correctional Institution at Graterford, Pennsylvania, in the Court of Common Pleas of
Montgomery County on May 3, 2012 ,alleging the denial of proper medical care and retaliation.
While the case was pending in Montgomery County, plaintiff filed a Petition and Affidavit for
Leave to Proceed In Forma Pauperis, which represented that he had no income and that he had
not been employed since 1996. On May 10, 2012, the state court granted plaintiffs request forin
forma pauperis status. On June 25, 2012, however, the case was removed to this court by certain
defendants: Prison Health Services, Inc., Dr. Felipe Arias, Dr. Robert Blatt, Dr. M. Coachi, Dr.
On February 8, 2008 plaintiff was granted permission to file an amended .
complaint on or before February 28, 2013. See Doc. 24. If plaintiff does file an amended
complaint within that time period, plaintiff should include sufficient identifying information to
allow the U.S. Marshals Service to serve defendants B. Marsh, Joseph C. Kosznik, Mike
Wenerdwicz, Dorina Varner, Wendy Shaylor and Laurel Harry. If plaintiff does not file an
amended complaint, service of the current Complaint shall be effected by the U.S. Marshals
Service upon these defendants.

Richard Kosieroski, and Dr. Richard Stefanie (collectively, the "Medical Defendants"). See Doc.
1. Before the case was removed, plaintiff had not yet served the remaining defendants: B. Marsh,
Joseph C. Kosznik, Mike Wenerdwicz, Dorina Varner, Wendy Shaylor and Laurel Harry
(collectively, the "Corrections Defendants"). By Order dated August 8, 2012, this court ordered
the Clerk to issue summons to the Corrections Defendants, but ordered plaintiff to serve the
Corrections Defendants in accordance with the Federal Rules of Civil Procedure (citing 28
U.S.C. § 1448 (2006)). (Doc. 7.) Plaintiff subsequently requested the court for an order
requiring the U.S. Marshals Service to serve process on the Corrections Defendants because he is
indigent and unable to pay the cost of such service, noting that he had been granted in forma
pauperis status in the state court prior to removal. (Doc. 8.) Plaintiff's request was denied and
he was ordered to serve the Corrections Defendants by November 13, 2012. (Doc. 10.)
On December 13, 2012, plaintiff filed the instant Motion, seeking additional time
to serve the Corrections Defendants, requesting the court to "uphold the Common Pleas grant of
in forma pauperis status," and requiring the U.S. Marshals Service to issue summons to the
Corrections Defendants. (Mot. at 1.)
The Prison Litigation Reform Act of 1995 ("PLRA"), Pub. L. No. 104-134, 110
Stat. 1321 (1996), which amends 28 U.S.C. § 1915, establishes certain financial requirements for
prisoners who seek to bring a civil action or file an appeal in forma pauperis. Furthermore, the
PLRA provides that a prisoner may not bring a civil action if, while incarcerated, the prisoner has
brought three or more actions that were dismissed as frivolous or malicious, or which 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).

2

A review of the court's Electronic Case Filing system shows that plaintiff has
filed at least nineteen actions in the Eastern District of Pennsylvania since 1998. Moreover,
plaintiff has had at least three prior actions dismissed either as frivolous or for failure to state a
claim upon which relief can be granted. See Brown v. Beard, 492 F. Supp.2d 474, 476-77 (E.D.
Pa. 2007) (listing cases brought by plaintiff that were dismissed for being frivolous, brought in
bad faith, or failing to state a claim).
However, as noted above, even if a plaintiff has had at least three prior actions
dismissed under the "three strikes" rule, a plaintiff may be entitled to proceed in forma pauperis
under the "imminent danger" exception to the three strikes rule. To show imminent danger, a
prisoner must show the danger is imminent at the time he files his complaint. "Allegations that
the prisoner has faced imminent danger in the past are insufficient to trigger this exception to §
1915(g) .... " Abdul-Akbar v. McKelvie, 239 F.3d 307, 313 (3d Cir. 2001) (en bane). The
Third Circuit Court of Appeals recently reversed the district court's denial of in forma pauperis
status in a separate case filed by plaintiff in the Eastern District of Pennsylvania, reasoning that
some of the claims presented by plaintiff in that case invoked the imminent danger exception to
the three strikes rule. See Civ. Action No. 10-3453, Doc. 16 (Order filed Jan. 24, 2013). See
also Brown v. Sec'y Pennsylvania Dept. of Corr., 486 Fed. Appx. 299 (3d Cir. 2012) (not
precedential) (acknowledging Brown's extensive history oflitigation, but remanding case and
directing district court to grant Brown in forma pauperis status because Brown had sufficiently
alleged imminent danger in that case).
Similarly, in the case at bar, for purposes of determining whether plaintiff has met
the threshold pleading requirement to proceed in forma pauperis, plaintiffs Complaint contains
3

sufficient allegations of imminent danger. At the time of the filing of his Complaint, plaintiff
reported that he was a fifty-six year old, African-American male who is experiencing prostate
problems. (Compl.

~

7, 22-23.) Plaintiff claims that he had an "elevated very high" PSA test

result on January 6, 2011 and has demonstrated other physical symptoms of prostate cancer.

Id.~

7. After receiving the PSA test results, plaintiff claims that prison medical staff gave him the

option of undergoing a digital rectal examination or a biopsy to diagnose his condition, but that
he needed additional time to decide which method of further testing to which he would consent.
Id.~~

9-14.
However, plaintiff claims that prison officials are failing to provide adequate

medical care in retaliation for the numerous grievances and lawsuits plaintiff has filed against
them.

Id.~~

30, 43, 45, 48-52, 54. For example, plaintiff alleges that from 2006 to 2009,

defendants failed to conduct the prostate screening tests required by Department of Corrections
policy and that defendants have falsely accused plaintiff of refusing such tests. Id.

~

61 (b).

Plaintiff further claims that defendants have falsely accused plaintiff of refusing diagnosis and
treatment on numerous occasions, including in 2010 and 2011. See id.

~

61 (c). Plaintiff also

avers that defendants have refused plaintiffs "attempts to have an MRI (Magnetic Resonance
Imaging) or related test." Id.

~

61 (d). In addition, plaintiff claims that the prison staff

"sabotages" his medical appointments, then falsely accuses plaintiff of refusing treatment. Id.

~

61 (e). For example, plaintiff alleges that he was scheduled for a biopsy in May 2011, but that the
biopsy has never been taken. Id.

~

61 (h), (i). Plaintiff also alleges that a follow-up PSA test has

not been conducted to determine whether the elevated 2011 score has risen further.

Id.~

Plaintiff claims that defendants "have at all times demonstrated deliberate indifference to

4

61(k).

plaintiffs urgent need to have his prostate problems diagnosed and treated" and details his
ongoing physical problems with his prostate, kidneys and bladder. Id. iii! 62, 69-74.
Accordingly, plaintiffs claims sufficiently invoke the imminent danger exception
to the three strikes rule and plaintiff may proceed in forma pauperis.

BY THE COURT:

1,Ji·~ ..
~~-R

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THOMAS J. RUE
United States Magistrate Judge

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