Brown v. Edinger et al

Filing 13

MEMORANDUM re pltf's mtns to Amend/Correct 10 and to add and amend complaint 11 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 1/10/17. (ma)

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

JOSEPH A. BROWN,
Plaintiff
vs.
MATT EDINGER, ET AL.,
Defendants

:
:
:
:
:
:
:
:
:
:

CIVIL NO. 1:16-CV-01700

(Judge Rambo)

MEMORANDUM
Background
On August 12, 2016, Plaintiff Joseph A. Brown,
an inmate at the United States Penitentiary, Lewisburg,
Pennsylvania (“USP-Lewisburg”)(Federal Bureau of Prisons
inmate number 09401-07), filed the above-captioned civil
rights action pursuant to 28 U.S.C. § 1331 and Bivens v.
Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971).1 (Doc. 1.)

In that complaint Brown

1. 28 U.S.C. § 1331 states as follows: “The district
court shall have original jurisdiction of all actions
arising under the Constitution, laws, or treaties of
the United States.”
Bivens stands for the proposition that "a citizen
suffering a compensable injury to a constitutionally
(continued...)

named as Defendants several individuals employed at USPLewisburg, including Unit Manager Matt Edinger, and
claims, inter alia, that Defendants failed to protect
him on February 4, 2016, from an assault by another
inmate. Along with the complaint, Brown filed a motion
to proceed in forma pauperis and an authorization to
have funds deducted from his prison account to pay the
filing fee in installments.

In the motion to proceed in

forma pauperis (Doc. 2) 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.
An electronic search on PACER revealed that
Brown falsely claimed that he did not previously file 3
or more cases that were dismissed for failure to state a
claim upon which relief may be granted. By memorandum of
1.

(...continued)

protected interest could invoke the general federal
question jurisdiction of the district court to obtain
an award of monetary damages against the responsible
federal official." Butz v. Economou, 438 U.S. 478, 504
(1978).
2

December 8, 2016, the court enumerated Brown’s prior
cases which were dismissed under 28 U.S.C. §
1915(e)(2)(B)(ii)2 and in a separate order dismissed
Brown’s complaint under the three strikes provision.3
(Docs. 8, 9.)

The court incorporates by reference the

memorandum. (Doc. 8.)
Subsequently, Brown filed on December 22, 2016,
two motions to amend his complaint (Docs. 10, 11) and on

2.

Section 1915(e)(2) provides:
(2) Notwithstanding any filing fee, or any portion
thereof, that may have been paid, the court shall
dismiss the case at any time if the court
determines that (A) the allegation of poverty is
untrue; or (B) the action or appeal (i) is
frivolous or malicious; (ii) fails to state a claim
on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune
from such relief.

3.

Section 1915(g) provides:
In no event shall a prisoner bring a civil action
or appeal a judgment in a civil action or
proceeding under this section if the prisoner has,
on 3 or more prior occasions, while incarcerated or
detained in any facility, brought an action or
appeal in a court of the United States that was
dismissed on the grounds that it is frivolous,
malicious, or fails to state a claim upon which
relief may be granted, unless the prisoner is
under imminent danger of serious physical injury.
3

January 4, 2017, a motion to amend his in forma pauperis
application. (Doc. 12.)

In light of the court’s

memorandum and order of December 8, 2016, the court will
deny the motions to amend.

Brown has three-strikes and

there is no indication in the complaint or the motions
to amend that he meets the criteria of the “imminent
danger” exception of 28 U.S.C. § 1915(g).

As for the

motion to amend his in forma pauperis application Brown
alleges that he did not realize that he had three
strikes and requests that he be permitted to correct the
error. The court discerns no basis to allow Brown to
correct the error.

As noted in the memorandum of

December 8, 2016, the decision dismissing the prior
cases specifically informed Brown that the dismissals
would be counted as strikes under 28 U.S.C. § 1915(g).
Furthermore, even if he were permitted to delete from
his in forma pauperis application the statement that he
did not have three strike, it would not change the
outcome.

Consequently, Brown’s motions to amend the

complaint and the in forma pauperis application will be
denied.

4

An appropriate order will be entered.

s/Sylvia Rambo
SYLVIA H. RAMBO
United States District Judge
Date: January 10, 2017

5