Chandler v. Mink et al

Filing 8

ORDER denying pltf's request to proceed IFP 5 , DISMISSING pltf's complaint 1 without prejudice pursuant to 28 USC 1915(g), directing Clrk of Ct to VACATE admin order 7 & notify warden @ USP Lewisburg, directing Clrk of Ct to CLOSE case, & deeming any appeal from this order as frivolous & not in good faith. (See order for complete details.) Signed by Honorable Christopher C. Conner on 5/28/13. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOHNNY RAY CHANDLER,
Plaintiff
v.
DR. DANIELLE MINK, et al.,
Defendants

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CIVIL ACTION NO. 1:13-CV-1211
(Judge Conner)

ORDER
AND NOW, this 28th day of May, 2013, upon consideration of plaintiff’s
recently filed Bivens1 action (Doc. 1), in which he seeks to proceed in forma
pauperis (Doc. 5), and the court finding that the “three strikes”provision of the
Prison Litigation Reform Act of 1996 (“PLRA”), codified at 28 U.S.C. § 1915(g),
prohibits him from proceeding in forma pauperis as he has had three prior actions
or appeals dismissed as frivolous, malicious, or for failing to state a viable claim, see
Ibrahim v. District of Columbia, 208 F.3d 1032 (D.C.Cir. 2000), cert. denied, 121 S.Ct.
2249 (June 11, 2001), and it being evident that there is no indiction that plaintiff “is
under imminent serious physical injury,” 28 U.S.C. § 1915(g) (setting forth the three

Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403
U.S. 388 (1971). Bivens stands for the proposition that “a citizen suffering a
compensable injury to a constitutionally protected interest could invoke the general
federal-question jurisdiction of the district courts to obtain an award of monetary
damages against the responsible federal official.” Butz v. Economou, 438 U.S. 478,
504 (1978).
Plaintiff alleges that he is being subjected to cruel and unusual punishment
in violation of the Eighth Amendment in that defendants are denying him medical
treatment for a diagnosed mental health condition known as “Erotomania.” (Doc.
1, at 3.) The condition causes him to write inappropriate letters to female staff
members which has led to the issuance of incident reports; his incident report
record has resulted in the denial of parole on three or more occasions. (Id.)
1

strikes rule which provides that an inmate who has three prior actions or appeals
dismissed as frivolous, malicious, or for failing to state a viable claim may not
proceed in forma pauperis “unless the prisoner is under imminent danger of
serious physical injury”), or that a threat of danger is real and proximate, AbdulAkbar v. McKelvie, 239 F.3d 307, 312 (3d Cir. 2001) (en banc) (finding that the
plaintiff must allege facts showing that he was in imminent danger at the time the
complaint was filed and that allegations that he faced imminent danger in the past
are insufficient to trigger the exception to section 1915(g); Lewis v. Sullivan, 279
F.3d 526, 531 (7th Cir. 2002) (concluding that the “imminent danger” exception is
available “for genuine emergencies,” where “time is pressing” and “a threat . . . is
real and proximate”)), and, therefore, his claim fails to meet the imminent danger
exception to section 1915(g), it is hereby ORDERED that:
1.

Plaintiff's request to proceed in forma pauperis (Doc. 5) is DENIED.

2.

Plaintiff's complaint (Doc. 1) is DISMISSED without prejudice
pursuant to 28 U.S.C. § 1915(g).

3.

The Clerk of Court is directed to VACATE the administrative order
(Doc. 7) and NOTIFY the warden at the United States Penitentiary at
Lewisburg.

4.

The Clerk of Court is directed to CLOSE this case.

5.

Any appeal from this order is DEEMED frivolous and not in good faith.
See 28 U.S.C. § 1915(a)(3).

S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge