Brown v. Sage et al
Filing
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MEMORANDUM re Complaint 1 filed by Joseph A. Brown (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.
DR. SAGE, et al.,
Defendants
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CIVIL NO. 1:16-CV-02477
(Judge Rambo)
MEMORANDUM
Background
On December 15, 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 a civil rights action,
purportedly 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.)
The Defendants named in
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
protected interest could invoke the general federal
question jurisdiction of the district court to obtain
(continued...)
the complaint are the following three mental health
professional employed at USP-Lewisburg: Dr. Sage, Dr.
Eigenbode and Dr. Shoey. (Id.)
Brown also in an
attachment to the form complaint names as a defendant
David J. Ebbert, the warden of USP-Lewisburg.
(Id.)
Brown claims that Defendants were deliberately
indifferent to his serious mental health needs when they
failed to provide him with mental health treatment.
(Id.)
Brown does not specify how or when they failed to
provide him with mental health treatment. (Id.)
Brown
requests compensatory damages in the amount of
$70,000,000.00 and an unspecified amount of punitive
damages. (Id.) A review of PACER reveals that Brown is a
frequent civil filer in this district and other
districts.
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 Brown stated under penalty of
1.
(...continued)
an award of monetary damages against the responsible
federal official." Butz v. Economou, 438 U.S. 478, 504
(1978).
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perjury that prior to the filing of the complaint he did
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.2
An electronic search on PACER confirms Brown’s
admission that he has file 3 or more cases that were
dismissed for failure to state a claim upon which relief
may be granted. The court will now enumerate Brown’s
prior cases which were dismissed under 28 U.S.C. §
1915(e)(2)(B)(ii).3
In several
in motions to
three or more
United States
malicious, or
relief may be
2.
3.
prior case filed in this district, Brown
proceed in forma pauperis denied filing
actions or appeals in a court of the
that were dismissed as frivolous,
for failure to state a claim upon which
granted.
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.
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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-
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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captioned case filed by Brown on December 14, 2016, will
be dismissed pursuant to 28 U.S.C. § 1915(g).
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
time the complaint is filed. Abdul-Akbar, 239 F.3d at
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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.
In the motion to proceed in forma pauperis filed
by Brown, he admitted that he had filed 3 or more civil
complaints which had been dismissed as frivolous or for
failure to state a claim upon which relief may be
granted. (Doc. 2.)
Furthermore, a review of court
dockets using the PACER system reveals that Brown in
fact has three strikes as enumerated above.
Brown, however, also claims that he is in
“imminent” danger of serious physical injury and in
support of that claim states in toto, including
grammatical errors:
I suffer from chronic post traumatic stress
disorder and has suffered multiple traumatic
incidents while housed here, and will suffer
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further deterioration of my mental health &
traumatic incidents without relief. Also,
the defendants are in violation of B.O.P.
policy statement 541.41c1c by housing me
here. The defendants inactions, and the
plaintiff mental condition is on-going.
(Doc. 12, at 2.)
After reviewing Brown’s complaint and
the assertions regarding “imminent” danger set forth in
his application to proceed in forma pauperis, the court
concludes that Brown’s allegations do not satisfy the
threshold criterion of the imminent danger exception of
28 U.S.C. § 1915(g).
While Brown may assert that he
suffers from mental health issues, this type of
complaint does not establish that he is in imminent
danger of serious physical injury.
Furthermore, relying
on such allegations of imminent danger would eviscerate
the intent of Congress to penalize those who have filed
three or more actions which have been dismissed as
frivolous or have failed to state a claim upon which
relief may be granted. Brown’s allegations fail to rise
to level of imminent danger under the statute.
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Consequently, Brown’s complaint will be dismissed
without prejudice.
s/Sylvia Rambo
SYLVIA H. RAMBO
United States District Judge
Dated: January 3, 2017
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