Brown v. Kemmerer

Filing 97

MEMORANDUM re. Mtn for lv to proceed ifp 2 and Order of 8/11/16 10 (Order to follow as separate docket entry) Signed by Honorable Sylvia H. Rambo on 1/3/17. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOSEPH A. BROWN,
Plaintiff
vs.
C.O. KEMMERER, et al.,
Defendants

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CIVIL NO. 1:14-CV-01520

(Judge Rambo)

MEMORANDUM
Background
On August 4, 2014, Plaintiff Joseph A. Brown, an
inmate (number 09401-007) incarcerated at the United
States Penitentiary at Allenwood, White Deer,
Pennsylvania, filed a complaint pursuant to 28 U.S.C. §
1331 setting forth claims under Bivens v. Six Unknown
Named Agents of the Federal Bureau of Narcotics, 403U.S.
388 (1977) and the Federal Tort Claims Act (“FTCA”)
regarding incidents which occurred at the United States
Penitentiary, Lewisburg, Pennsylvania,(“USP-Lewisburg”),
on and after April 12, 2013.1 Brown alleged in pertinent
part as follows, including the grammatical errors:

1.

Brown is presently incarcerated at USP-Lewisburg.

On April 12, 2013, the plaintiff was violently
placed in restraints by (C.O.) Kemmer and other
staff members for his refusal to accept a
cellie. As a result, the plaintiff suffers nerve
damage to both hands with a loss of feeling and
numbness. The plaintiff also has permanent scars
of keloids around his wrist, waist, and ankles
due to the beating, and tightness of the
restraints used as weapons. The plaintiff also
suffered additional trauma after he was forced
to urine, and defecate on his self. This went
on for several days.
(Doc. 1-1, “Supplemental Complaint” attached to the
complaint(Doc. 1.), at 2 (Statement of Claim)).

Along

with the complaint Brown filed a motion to proceed in
forma pauperis. (Doc. 2.)

In the motion to proceed in

forma pauperis Brown stated under penalty of perjury
that prior to the filing of the complaint he did not
file 3 or more actions or appeals in a court of the
United States that were dismissed as frivolous,
malicious, or for failure to state a claim upon which
relief may be granted.
Named as defendants were the United States and
Correctional Officer Kemmerer. (Docs. 1 and 1-1.) As
relief, Brown requested compensatory damages in the
amount of $3,000,000 and punitive damages in amount to
be determined by a jury. (Doc. 1, at 3.)
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On October 27, 2014, the Defendants filed a
motion to dismiss and/or for summary judgment. (Doc.
15.)

A statement of material facts and a supporting

brief were filed on November 10, 2014. (Docs. 16 and
17.) After an amended complaint was filed by Brown on
February 20, 2015, naming 23 additional individual
defendants, all who were employed at USP-Lewisburg, the
Defendants’ motion to dismiss and/or for summary
judgment was deemed moot. (Docs. 32, 35 and 38.) The
amended complaint essentially set forth the same claims
as the original complaint and requested the same relief.
Defendants were served with the amended
complaint, and after being granted an extension of time,
Defendants filed a motion for summary judgment on July
14, 2015. (Doc. 51.)

Defendants argued that summary

judgment should be entered in their favor because Brown
failed to properly exhaust his administrative remedies
for both his Bivens and FTCA claims.

By memorandum and

order of January 28, 2016, the court granted the motion
as it related to Browns’ FTCA claim and denied the
motion as it related to Browns’ Bivens claim without

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prejudice to the Defendants refiling the motion after a
period of discovery relating solely to the issue of
exhaustion of administrative remedies. See Drippe v.
Tobelinski, 604 F.3d 778, 782 (3d Cir. 2010); see also
Messa v. Goord, 652 F.3d 305, 308-309 (2nd Cir. 2011) and
cases cited therein (no right to a jury trial on factual
disputes regarding an inmate’s failure to exhaust
administrative remedies).
After a period of discovery, Defendants filed a
motion for summary judgment in which they argued that
Brown failed to exhaust administrative remedies. (Doc.
90.)

On October 31, 2016, Defendants notified the court

that they were withdrawing the motion because there were
material issues of fact in dispute and they requested an
evidentiary hearing.

On November 9, 2016, the court

directed the parties to notify the court within fortyfive (45) days if they would consent to the referral of
this matter to a Magistrate Judge pursuant to 28 U.S.C.
§ 636(c)(1) for an evidentiary hearing and decision
regarding whether or not Brown exhausted administrative
remedies.

On November 18, 2016, Plaintiff informed the

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court that he would not consent to such a referral.
Although the court was unable to refer this matter to a
Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1)
because of the lack of consent from Plaintiff, the court
on November 22, 20016 referred the matter to a
Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)) on
the issue of exhaustion of administrative remedies and
for the submission of a report and recommendation.
matter was assigned to Magistrate Judge Arbuckle.

The
As of

this date a hearing has not been held.2
Recently, Brown filed two new civil cases.3
Upon review and screening of those two cases it was
determined that although Brown stated in motions to
proceed in forma pauperis that he did not have three
strikes under the Prison Litigation Reform Act, an
electronic search on PACER revealed that the claim was
false.

The court will again enumerate those strikes.

Magistrate Judge Arbuckle is in the process of
scheduling a hearing.
2.

The two cases were as follows: (1) Brown v. Dees, et
al., Civil No. 1:16-CV-1585 (M.D.Pa. filed July 28,
2016) and (2) Brown v. Edinger, et al., Civil No. 1:16CV-1700 (M.D.Pa. filed Aug. 12, 2016).
3.

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On September 15, 2011, Brown (inmate number
09401-07) filed a civil rights complaint in the United
States District Court for the Eastern District of
California. Brown v. United States of America, et al.,
No. 1:11-CV-01562-MJS. On May 31, 2013, a fifth amended
complaint filed in that action by Brown was dismissed
for failure to state a claim upon which relief can be
granted and it was specifically stated in the order that
“the dismissal shall count as a strike under 28 U.S.C. §
1915(g)[.]”

Brown v. United States of America, et al.,

No. 1:11-CV-01562-MJS, slip op. at 12 (E.D.Ca. May 31,
2013)(Doc. 58).
On February 6, 2012, Brown (inmate number 0940107) filed a civil rights complaint in the United States
District Court for the Eastern District of California.
Brown v. United States of America, et al., No. 1:12-CV00165-AWI-GSA. On November 13, 2014, Brown’s complaint
was dismissed for failure to state a claim upon which
relief can be granted and it was specifically stated in
the order that the “dismissal is subject to the “three
strikes’ provision set forth in 28 U.S.C. § 1915(g)[.]”

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Brown v. United States of America, et al., No. 1:12-CV00165-AWI-GSA, slip op. at 2 (E.D.Ca. Nov. 13,
2014)(Doc. 63).
On December 19, 2013, Brown (inmate number
09401-07) filed a civil rights complaint in the United
States District Court for the Central District of
California. Brown v. Profitt, et al., No. 5:13-CV-02338UA-RZ. On March 3, 2014, Brown’s application to proceed
without prepayment of the full filing fee was denied and
the complaint dismissed for failure to state a claim
upon which relief can be granted and it was stated that
the dismissal would constitute a strike under 28 U.S.C.
§ 1915(g).

Brown v. Profitt, et al., No. 5:13-CV-02338-

UA-RZ (C.D.Ca. Mar. 7, 2014)(Doc. 3)(order re motion for
leave to file action without prepayment of full filing
fee).4

For the reasons set forth below, the above-

captioned case will be dismissed if Brown fails to pay

4. A 1-page form order was completed by a Magistrate
Judge in which the Magistrate Judge recommended denial
of the motion to proceed without full prepayment of the
filing fee and dismissal of the complaint for failure
to state a claim upon which relief could be granted and
the Chief Judge of the Central District of California
adopted the recommendation.
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the balance of the filing fee ($340.53) and a $50.00
administrative fee within thirty (30) days.
Discussion
The Prison Litigation Reform Act, Pub. L. No.
104-134, 110 Stat. 1321 (April 26, 1996), in an effort
to halt the filing of meritless inmate litigation,
enacted what is commonly referred to as the "three
strikes" provision.

Codified at 28 U.S.C. § 1915(g),

the “three strikes” rule provides that an inmate who has
had three prior actions or appeals dismissed as
frivolous, malicious, or for failing to state a viable
claim may not proceed in a civil action in forma
pauperis “unless the prisoner is in imminent danger of
serious physical injury.”

See 28 U.S.C. § 1915(g), and

Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir
2001)(en banc).

The “imminent danger” exception to §

1915(g)’s “three strikes” rule is available “for genuine
emergencies,” where “time is pressing” and “a threat ...
is real and proximate.” Lewis v. Sullivan, 279 F.3d 526,
531 (7th Cir.2002).

“Imminent danger” is assessed not

at the time of the alleged incident, but rather at the

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time the complaint is filed. Abdul-Akbar, 239 F.3d at
312.

Furthermore, the Court of Appeals for the Third

Circuit explained that
“[i]mminent” dangers are those dangers which are
about to occur at any moment or are impending.
By using the term “imminent,” Congress indicated
that it wanted to include a safety valve for the
“three strikes” rule to prevent impending harms,
not those harms that had already occurred. The
imminent danger exception allows the district
court to permit an otherwise barred prisoner to
file a complaint I.F.P. if the prisoner could be
subject to serious physical injury and does not
then have the requisite filing fee.
Abdul-Akbar, 239 F.3d at 315.
As stated above in the motion to proceed in
forma pauperis filed by Brown, he falsely stated that he
did not have three or more strikes.

A review of the

District Court dockets in California reveals that Brown
has three strikes.

Also, Brown did not claim that he

was in “imminent” danger of serious physical injury and
there are no facts set forth in Brown’s complaints from
which it could be concluded that he was in such danger
at the time he filed the complaint on August 4, 2014.
Consequently, Brown’s complaint will be dismissed unless

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within thirty (30) days of the date hereof he pay the
balance of the filing fee and an administrative fee.
An appropriate order will be entered.

s/Sylvia Rambo
SYLVIA H. RAMBO
United States District Judge
Dated: January 3, 2017

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