Chandler v. Fasciano

Filing 7

ORDER DENYING pltf's request to proceed IFP 5 , DISMISSING pltf's complaint 1 without prejudice, 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 Chief Judge Christopher C. Conner on 12/29/14. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOHNNY RAY CHANDLER, SR.,
Plaintiff
v.
FRANCIS FASCIANO,
Defendant

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CIVIL NO. 1:14-CV-2356
(Chief Judge Conner)

ORDER
AND NOW, this 29th day of December, 2014, 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), and it being evident
that plaintiff’s allegations2 do not indicate that he “is under imminent serious
physical injury,” 28 U.S.C. § 1915(g) (setting forth the three strikes rule which

1

See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) (holding
that there exists an implied private action for damages against federal officers
alleged to have violated a citizen’s constitutional rights).
2

Chandler, an inmate incarcerated at the United States Penitentiary at
Lewisburg, sets forth general allegations of denial of medical treatment. (Doc. 1,
p. 3).

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, 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 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 CLOSE this case.

4

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, Chief Judge
United States District Court
Middle District of Pennsylvania