Piskanin v. Lamas et al

Filing 7

ORDER - It is hereby ORDERED that: 1. Pltf's motion to proceed IFP 4 DENIED.; 2. Admin order 6 VACATED & Clrk of Ct directed to send notice to warden @ pltf's place of incarceration.; 3. Pltf's complainti 1 DISMISSED w/out prejudice.; 4. Clrk of Ct directed to CLOSE case.; 5. Any appeal from this order DEEMED frivolous & not in good faith. (See order for complete details.) Signed by Honorable Christopher C. Conner on 7/18/13. (ki)

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

MICHAEL J.PISKANIN,

:
:
Plaintiff
:
:
v.
:
:
MARIROSA LAMAS, et al.,
:
:
Defendants :

CIVIL ACTION NO. 1:13-CV-1843
(Judge Conner)

ORDER
AND NOW, this 18th day of July, 2013, upon preliminary consideration of
plaintiff’s civil rights action pursuant to 42 U.S.C. § 1983 (Doc. 1), in which he seeks
to proceed in forma pauperis (Doc. 4), 28 U.S.C. § 1915, 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 claim1, and it being evident that there is no indiction that

The following recitation was set forth in a report and recommendation of
former United States Magistrate Judge Malachy E. Mannion, now United States
District Court Judge, and adopted by the undersigned in Piskanin, v. FBI, No. 1:120909, 2012 WL 4050181, *1 (M.D. Pa. Aug. 8, 2012):
1

Plaintiff has filed three or more actions in federal court which have been
dismissed as frivolous, malicious, or for failure to state a claim upon
which relief may be granted. Specifically, in Piskanin v. Banach, et al.,
2008 WL 5246165 (E.D.Pa. 2008), plaintiff's amended complaint was
dismissed for failure to state a claim upon which relief can be granted
pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii). Plaintiff then appealed this
ruling to the United States Court of Appeals for the Third Circuit.
Piskanin v. Hamer, 269 Fed. Appx. 159 (3d Cir. 2008). The Third Circuit
affirmed the district court’s ruling and dismissed the appeal as frivolous.

plaintiff “is under imminent serious physical injury,” 28 U.S.C. § 1915(g)2 (setting

Id. at 162. Plaintiff then filed another action alleging that he was “former
operative” for the Federal Bureau of Investigation and that he was
entitled to FBI “protection” from numerous public officials who allegedly
have engaged in retaliatory acts, including his criminal prosecution.
Piskanin v. John Doe, 2009 WL 1684651 (E.D.Pa. 2009). The district court
dismissed this action as frivolous. Id. On appeal, the Third Circuit
affirmed the district court opinion that the action should be dismissed as
frivolous. Piskanin v. John Doe, 349 Fed. Appx. 689 (3d Cir. 2009).
Plaintiff then filed a third complaint, which the District Court for the
Western District of Pennsylvania dismissed pursuant to the three strikes
rule, or 28 U.S.C. § 1915(g). Piskanin v. PA Department of Corrections,
et al., 2010 WL 3834845 (W.D.Pa. 2010). Finally, plaintiff filed a fourth
complaint, which was dismissed by the District Court for the Middle
District of Pennsylvania for failure to state a claim upon which relief
could be granted. Piskanin v. Commonwealth of Pennsylvania, et al., 2010
WL 4362458 (M.D.Pa. 2010).
Plaintiff’s complaint was signed on June 30, 2013. (Doc. 1, at 5.) He is
seeking an order directing defendants to “cease and desist” medically abusing him,
to refer him to a competent eye surgeon, to provide him with a current model of a
blood sugar meter that allows forearm testing, and to provide him with a nightly
diabetic snack bag. (Doc. 1, at 4.) His allegations of medical abuse are not sufficient
to trigger the exception to section 1915(g) because he was not in imminent danger
of serious physical harm at the time he filed the complaint. For instance, he alleges
that he had only three nitroglycerin tablets and had to wait from 8:00 p.m. on June
28, 2013, until the morning pill line on June 29, 2013, to get a refill. (Doc. 1, at ¶
12A.) He does not allege that he was denied the refill. On June 22, 2013, he had a
toothache and abscess and his requests for treatment were denied. (Id. at ¶ 12B).
Consequently, during the period of June 22, 2013, through June 28, 2013, he was
unable to eat and “suffered risk of diabetic serious injury andor [sic] death.” (Id.) It
appears that the alleged threat of harm subsided on June 28, 2013. The allegations
that, despite his medical conditions of dizziness, diabetes, coronary artery disease
and vision disabilities, he has been denied the use of handicap showers since May 1,
2013, do not rise to the level of imminent danger; nor do the allegations that he was
denied denture adhesive, denture cleaner, and dental floss. (Id. at ¶¶ 12C, D.)
Likewise, his allegations that he suffers from cataracts and that he is refusing to
have the surgery because defendants want to send him to an eye surgeon not of his
choosing do not rise to the level of imminent harm. (Id. at ¶12E.)
2

2

forth the three 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”); see also Abdul-Akbar 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 not sufficient to trigger the exception
to section 1915(g)), it is hereby ORDERED that:
1.

Plaintiff’s motion to proceed in forma pauperis (Doc. 4) is DENIED.

2.

The administrative order (Doc. 6) is hereby VACATED. The Clerk of
Court shall send notice to the warden at plaintiff’s present place of
incarceration.

3.

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

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